EUROPEAN IMMIGRATION AND ASYLUM LAW
VOLUME I: LEGISLATION AND POLICY DOCUMENTS
Prof. dr. Dirk Vanheule
2011-2012
Erasmus Teaching Staff Mobility
Volume I - 2
Table of Contents
COURSE OBJECTIVES, MATERIALS AND ASSESSMENT
I. THE INSTITUTIONAL FRAMEWORK OF EU IMMIGRATION AND
ASYLUM POLICY......................................................................................6
A. Treaty on the Functioning of the European Union (TFEU) ..............................6
B. Charter of Fundamental Rights and Freedoms ........................................... 13
C. Policy instruments ................................................................................. 13
1. Stockholm Programme ....................................................................................... 13
II. CITIZENSHIP AND FREE MOVEMENT OF EU CITIZENS AND THEIR
FAMILIES..............................................................................................31
A. Directive 2004/38/EC of the European Parliament and of the Council of 29
April 2004 on the right of citizens of the Union and their family members
to move and reside freely within the territory of the Member States
amending Regulation (EEC) No 1612/68 and repealing Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC,
75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC ................................ 31
B. Regulation (EU) No 492/2011 of the European Parliament and of the
Council of 5 April 2011 on freedom of movement for workers within the
Union................................................................................................... 31
III. VOLUNTARY MIGRATION ......................................................................32
A. Entry into the EU................................................................................... 32
1. Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries
whose nationals must be in possession of visas when crossing the external
borders and those whose nationals are exempt from that requirement .................... 32
2. Regulation (EC) No 810/2009 of the European Parliament and of the Council of
13 July 2009 establishing a Community Code on Visas (Visa Code) ......................... 32
3. Regulation (EC) No 562/2006 of the European Parliament and of the Council of
15 March 2006 establishing a Community Code on the rules governing the
movement of persons across borders (Schengen Borders Code) ............................. 32
4. Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a
European Agency for the Management of Operational Cooperation at the
External Borders of the Member States of the European Union ............................... 32
B. Family Migration.................................................................................... 33
1. Council Directive 2003/86/EC of 22 September 2003 on the right to family
reunification ..................................................................................................... 33
C. Student and Researcher Migration ........................................................... 34
1. Council Directive 2004/114/EC of 13 December 2004 on the conditions of
admission of third-country nationals for the purposes of studies, pupil exchange,
unremunerated training or voluntary service ........................................................ 34
2. Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for
Volume I - 3
admitting third-country nationals for the purposes of scientific research .................. 34
D. Labour Migration ................................................................................... 35
1. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and
residence of third-country nationals for the purposes of highly qualified
employment..................................................................................................... 35
2. Directive 2011/98/EU of the European Parliament and of the Council of 13
December 2011 on a single application procedure for a single permit for thirdcountry
nationals to reside and work in the territory of a Member State and on a
common set of rights for third-country workers legally residing in a Member
State............................................................................................................... 35
E. Long Term Residents ............................................................................. 36
1. Council Directive 2003/109/EC of 25 November 2003 concerning the status of
third-country nationals who are long-term residents.............................................. 36
IV. FORCED MIGRATION.............................................................................37
A. Asylum................................................................................................. 37
1. Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the
criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a thirdcountry
national................................................................................................ 37
2. Council Directive 2003/9/EC of 27 January 2003 laying down minimum
standards for the reception of asylum seekers ...................................................... 37
3. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted........................................................................ 37
4. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on
procedures in Member States for granting and withdrawing refugee status............... 37
5. Regulation (EU) No 439/2010 of the European Parliament and of the Council of
19 May 2010 establishing a European Asylum Support Office ................................. 37
B. Temporary Protection............................................................................. 37
1. Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on
measures promoting a balance of efforts between Member States in receiving
such persons and bearing the consequences thereof ............................................. 37
V. IRREGULAR MIGRATION, DETENTION AND RETURN .............................38
A. Council Directive 2002/90/EC of 28 November 2002 defining the
facilitation of unauthorised entry, transit and residence.............................. 38
B. Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of
decisions on the expulsion of third country nationals.................................. 38
C. Council Directive 2003/110/EC of 25 November 2003 on assistance in
cases of transit for the purposes of removal by air..................................... 38
D. Directive 2008/115/EC of the European Parliament and of the Council of
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16 December 2008 on common standards and procedures in Member
States for returning illegally staying third-country nationals........................ 38
E. Council Directive 2004/81/EC of 29 April 2004 on the residence permit
issued to third-country nationals who are victims of trafficking in human
beings or who have been the subject of an action to facilitate illegal
immigration, who cooperate with the competent authorities ....................... 38
F. Directive 2009/52/EC of the European Parliament and of the Council of 18
June 2009 providing for minimum standards on sanctions and measures
against employers of illegally staying third-country nationals ...................... 38
Volume I - 5
Course Objectives, Materials and Assessment
The aim of this course is to provide insight into the multilevel aspects of
European immigration and asylum policy and law. Whilst national sovereignty
in matters of immigration is still recognized in principle, both international
(human rights) treaties and EU law have increasingly determined the
development of policy and law in this field during the last two decades. The
determination of who is entitled to enter and stay in the Member States of the
European Union, the development of free movement between the Member
States, the removal of persons from the territory of the Member States, and
the accompanying measures of border control, reception and legal enforcement,
have all been affected by this development.
The course will address these issues, both with regard to EU nationals and
their families and to third country nationals. This will include an analysis of
the relevant provisions from EU law (EU citizenship, freedom of movement
and the legal instruments adopted, since the Treaty of Amsterdam, in matters
of migration and asylum for third country nationals) and from international
law (Geneva Convention on the Status of Refugees, European Convention on
Human Rights, Convention on the Rights of the Child, Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families). The course will also focus on the institutional
aspects like the role of the European Union and its impact on solidarity among
Member States, and the role of the European Court of Human Rights and the
Court of Justice of the EU.
The course materials are bundled in two volumes. Volume I contains the
legislation and policy documents that will be discussed in class. Please bring a
printed or electronic version of volume I with you in class. Volume II holds the
case law and serves as documentation; it can be consulted electronically.
The assessment will consist of a written essay.
Prof. dr. Dirk Vanheule
Faculty of Law, University of Antwerp
dirk.vanheule@ua.ac.be
Volume I - 6
I. The Institutional Framework of EU Immigration and
Asylum Policy
A. Treaty on the Functioning of the European Union (TFEU)
PART TWO
NON-DISCRIMINATION AND
CITIZENSHIP OF THE UNION
Article 18
(ex Article 12 TEC)
Within the scope of application of the
Treaties, and without prejudice to any
special provisions contained therein, any
discrimination on grounds of nationality
shall be prohibited.
The European Parliament and the Council,
acting in accordance with the ordinary
legislative procedure, may adopt rules
designed to prohibit such discrimination.
Article 19
(ex Article 13 TEC)
1. Without prejudice to the other provisions
of the Treaties and within the limits of the
powers conferred by them upon the Union,
the Council, acting unanimously in
accordance with a special legislative
procedure and after obtaining the consent of
the European Parliament, may take
appropriate action to combat discrimination
based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual
orientation.
2. By way of derogation from paragraph 1,
the European Parliament and the Council,
acting in accordance with the ordinary
legislative procedure, may adopt the basic
principles of Union incentive measures,
excluding any harmonisation of the laws and
regulations of the Member States, to
support action taken by the Member States
in order to contribute to the achievement of
the objectives referred to in paragraph 1.
Article 20
(ex Article 17 TEC)
1. Citizenship of the Union is hereby
established. Every person holding the
nationality of a Member State shall be a
citizen of the Union. Citizenship of the Union
shall be additional to and not replace
national citizenship.
2. Citizens of the Union shall enjoy the
rights and be subject to the duties provided
for in the Treaties. They shall have, inter
alia:
(a) the right to move and reside freely
within the territory of the Member States;
(b) the right to vote and to stand as
candidates in elections to the European
Parliament and in municipal elections in
their Member State of residence, under the
same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a
third country in which the Member State of
which they are nationals is not represented,
the protection of the diplomatic and
consular authorities of any Member State on
the same conditions as the nationals of that
State;
(d) the right to petition the European
Parliament, to apply to the European
Ombudsman, and to address the institutions
and advisory bodies of the Union in any of
the Treaty languages and to obtain a reply
in the same language.
These rights shall be exercised in
accordance with the conditions and limits
defined by the Treaties and by the
measures adopted thereunder.
Article 21
(ex Article 18 TEC)
1. Every citizen of the Union shall have the
right to move and reside freely within the
territory of the Member States, subject to
the limitations and conditions laid down in
the Treaties and by the measures adopted
to give them effect.
2. If action by the Union should prove
necessary to attain this objective and the
Treaties have not provided the necessary
powers, the European Parliament and the
Council, acting in accordance with the
ordinary legislative procedure, may adopt
provisions with a view to facilitating the
exercise of the rights referred to in
paragraph 1.
3. For the same purposes as those referred
to in paragraph 1 and if the Treaties have
not provided the necessary powers, the
Council, acting in accordance with a special
legislative procedure, may adopt measures
concerning social security or social
protection. The Council shall act unanimously
after consulting the European Parliament.
Article 22
(ex Article 19 TEC)
1. Every citizen of the Union residing in a
Member State of which he is not a national
shall have the right to vote and to stand as
a candidate at municipal elections in the
Member State in which he resides, under
the same conditions as nationals of that
State. This right shall be exercised subject
to detailed arrangements adopted by the
Council, acting unanimously in accordance
Volume I - 7
with a special legislative procedure and after
consulting the European Parliament; these
arrangements may provide for derogations
where warranted by problems specific to a
Member State.
2. Without prejudice to Article 223(1) and to
the provisions adopted for its implementation,
every citizen of the Union residing in a
Member State of which he is not a national
shall have the right to vote and to stand as
a candidate in elections to the European
Parliament in the Member State in which he
resides, under the same conditions as
nationals of that State. This right shall be
exercised subject to detailed arrangements
adopted by the Council, acting unanimously
in accordance with a special legislative
procedure and after consulting the European
Parliament; these arrangements may
provide for derogations where warranted by
problems specific to a Member State.
Article 23
(ex Article 20 TEC)
Every citizen of the Union shall, in the
territory of a third country in which the
Member State of which he is a national is
not represented, be entitled to protection by
the diplomatic or consular authorities of any
Member State, on the same conditions as
the nationals of that State. Member States
shall adopt the necessary provisions and
start the international negotiations required
to secure this protection.
The Council, acting in accordance with a
special legislative procedure and after
consulting the European Parliament, may
adopt directives establishing the coordination
and cooperation measures necessary to
facilitate such protection.
Article 24
(ex Article 21 TEC)
The European Parliament and the Council,
acting by means of regulations in
accordance with the ordinary legislative
procedure, shall adopt the provisions for the
procedures and conditions required for a
citizens’ initiative within the meaning of
Article 11 of the Treaty on European Union,
including the minimum number of Member
States from which such citizens must come.
Every citizen of the Union shall have the
right to petition the European Parliament in
accordance with Article 227.
Every citizen of the Union may apply to the
Ombudsman established in accordance with
Article 228.
Every citizen of the Union may write to any
of the institutions or bodies referred to in
this Article or in Article 13 of the Treaty on
European Union in one of the languages
mentioned in Article 55(1) of the Treaty on
European Union and have an answer in the
same language.
Article 25
(ex Article 22 TEC)
The Commission shall report to the
European Parliament, to the Council and to
the Economic and Social Committee every
three years on the application of the
provisions of this Part. This report shall take
account of the development of the Union.
On this basis, and without prejudice to the
other provisions of the Treaties, the Council,
acting unanimously in accordance with a
special legislative procedure and after
obtaining the consent of the European
Parliament, may adopt provisions to
strengthen or to add to the rights listed in
Article 20(2). These provisions shall enter
into force after their approval by the
Member States in accordance with their
respective constitutional requirements.
(…)
TITLE IV
FREE MOVEMENT OF PERSONS,
SERVICES AND CAPITAL
CHAPTER 1
WORKERS
Article 45
(ex Article 39 TEC)
1. Freedom of movement for workers shall
be secured within the Union.
2. Such freedom of movement shall entail
the abolition of any discrimination based on
nationality between workers of the Member
States as regards employment, remuneration
and other conditions of work and
employment.
3. It shall entail the right, subject to
limitations justified on grounds of public
policy, public security or public health:
(a) to accept offers of employment actually
made;
(b) to move freely within the territory of
Member States for this purpose;
(c) to stay in a Member State for the
purpose of employment in accordance with
the provisions governing the employment of
nationals of that State laid down by law,
regulation or administrative action;
(d) to remain in the territory of a Member
State after having been employed in that
State, subject to conditions which shall be
embodied in regulations to be drawn up by
the Commission.
4. The provisions of this Article shall not
apply to employment in the public service.
Article 46
(ex Article 40 TEC)
The European Parliament and the Council
shall, acting in accordance with the ordinary
legislative procedure and after consulting
the Economic and Social Committee, issue
directives or make regulations setting out
the measures required to bring about
freedom of movement for workers, as
defined in Article 45, in particular:
(a) by ensuring close cooperation between
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national employment services;
(b) by abolishing those administrative
procedures and practices and those
qualifying periods in respect of eligibility for
available employment, whether resulting
from national legislation or from agreements
previously concluded between
Member States, the maintenance of which
would form an obstacle to liberalisation of
the movement of workers;
(c) by abolishing all such qualifying periods
and other restrictions provided for either
under national legislation or under
agreements previously concluded between
Member States as imposed on workers of
other Member States conditions regarding
the free choice of employment other than
those imposed on workers of the State
concerned;
(d) by setting up appropriate machinery to
bring offers of employment into touch with
applications for employment and to facilitate
the achievement of a balance between
supply and demand in the employment
market in such a way as to avoid serious
threats to the standard of living and level of
employment in the various regions and
industries.
Article 47
(ex Article 41 TEC)
Member States shall, within the framework
of a joint programme, encourage the
exchange of young workers.
Article 48
(ex Article 42 TEC)
The European Parliament and the Council
shall, acting in accordance with the ordinary
legislative procedure, adopt such measures
in the field of social security as are
necessary to provide freedom of movement
for workers; to this end, they shall make
arrangements to secure for employed and
self- employed migrant workers and their
dependants:
(a) aggregation, for the purpose of
acquiring and retaining the right to benefit
and of calculating the amount of benefit, of
all periods taken into account under the
laws of the several countries;
(b) payment of benefits to persons resident
in the territories of Member States.
Where a member of the Council declares
that a draft legislative act referred to in the
first subparagraph would affect important
aspects of its social security system,
including its scope, cost or financial
structure, or would affect the financial
balance of that system, it may request that
the matter be referred to the European
Council. In that case, the ordinary
legislative procedure shall be suspended.
After discussion, the European Council shall,
within four months of this suspension,
either:
(a) refer the draft back to the Council,
which shall terminate the suspension of the
ordinary legislative procedure; or
(b) take no action or request the
Commission to submit a new proposal; in
that case, the act originally proposed shall
be deemed not to have been adopted.
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 49
(ex Article 43 TEC)
Within the framework of the provisions set
out below, restrictions on the freedom of
establishment of nationals of a Member
State in the territory of another Member
State shall be prohibited. Such prohibition
shall also apply to restrictions on the
setting-up of agencies, branches or
subsidiaries by nationals of any Member
State established in the territory of any
Member State.
Freedom of establishment shall include the
right to take up and pursue activities as
self-employed persons and to set up and
manage undertakings, in particular
companies or firms within the meaning of
the second paragraph of Article 54, under
the conditions laid down for its own
nationals by the law of the country where
such establishment is effected, subject to
the provisions of the Chapter relating to
capital.
Article 50
(ex Article 44 TEC)
1. In order to attain freedom of establishment
as regards a particular activity, the
European Parliament and the Council, acting
in accordance with the ordinary legislative
procedure and after consulting the Economic
and Social Committee, shall act by means of
directives.
2. The European Parliament, the Council
and the Commission shall carry out the
duties devolving upon them under the
preceding provisions, in particular:
(a) by according, as a general rule, priority
treatment to activities where freedom of
establishment makes a particularly valuable
contribution to the development of
production and trade;
(b) by ensuring close cooperation between
the competent authorities in the Member
States in order to ascertain the particular
situation within the Union of the various
activities concerned;
(c) by abolishing those administrative
procedures and practices, whether resulting
from national legislation or from agreements
previously concluded between
Member States, the maintenance of which
would form an obstacle to freedom of
establishment;
(d) by ensuring that workers of one Member
State employed in the territory of another
Member State may remain in that territory
for the purpose of taking up activities
therein as self-employed persons, where
they satisfy the conditions which they would
be required to satisfy if they were entering
that State at the time when they intended
to take up such activities;
Volume I - 9
(e) by enabling a national of one Member
State to acquire and use land and buildings
situated in the territory of another Member
State, in so far as this does not conflict with
the principles laid down in Article 39(2);
(f) by effecting the progressive abolition of
restrictions on freedom of establishment in
every branch of activity under consideration,
both as regards the conditions for
setting up agencies, branches or subsidiaries
in the territory of a Member State and as
regards the subsidiaries in the territory of a
Member State and as regards the conditions
governing the entry of personnel belonging
to the main establishment into managerial
or supervisory posts in such agencies,
branches or subsidiaries;
(g) by coordinating to the necessary extent
the safeguards which, for the protection of
the interests of members and others, are
required by Member States of companies or
firms within the meaning of the second
paragraph of Article 54 with a view to
making such safeguards equivalent
throughout the Union;
(h) by satisfying themselves that the
conditions of establishment are not
distorted by aids granted by Member States.
Article 51
(ex Article 45 TEC)
The provisions of this Chapter shall not
apply, so far as any given Member State is
concerned, to activities which in that State
are connected, even occasionally, with the
exercise of official authority.
The European Parliament and the Council,
acting in accordance with the ordinary
legislative procedure, may rule that the
provisions of this Chapter shall not apply to
certain activities.
Article 52
(ex Article 46 TEC)
1. The provisions of this Chapter and
measures taken in pursuance thereof shall
not prejudice the applicability of provisions
laid down by law, regulation or administrative
action providing for special treatment
for foreign nationals on grounds of public
policy, public security or public health.
2. The European Parliament and the Council
shall, acting in accordance with the ordinary
legislative procedure, issue directives for
the coordination of the abovementioned
provisions.
Article 53
(ex Article 47 TEC)
1. In order to make it easier for persons to
take up and pursue activities as selfemployed
persons, the European Parliament
and the Council shall, acting in accordance
with the ordinary legislative procedure,
issue directives for the mutual recognition of
diplomas, certificates and other evidence of
formal qualifications and for the coordination
of the provisions laid down by law,
regulation or administrative action in
Member States concerning the taking-up
and pursuit of activities as self- employed
persons.
2. In the case of the medical and allied and
pharmaceutical professions, the progressive
abolition of restrictions shall be dependent
upon coordination of the conditions for their
exercise in the various Member States.
Article 54
(ex Article 48 TEC)
Companies or firms formed in accordance
with the law of a Member State and having
their registered office, central administration
or principal place of business within the
Union shall, for the purposes of this
Chapter, be treated in the same way as
natural persons who are nationals of
Member States.
‘Companies or firms’ means companies or
firms constituted under civil or commercial
law, including cooperative societies, and
other legal persons governed by public or
private law, save for those which are non-
profit-making.
Article 55
(ex Article 294 TEC)
Member States shall accord nationals of the
other Member States the same treatment as
their own nationals as regards participation
in the capital of companies or firms within
the meaning of Article 54, without prejudice
to the application of the other provisions of
the Treaties.
CHAPTER 3
SERVICES
Article 56
(ex Article 49 TEC)
Within the framework of the provisions set
out below, restrictions on freedom to
provide services within the Union shall be
prohibited in respect of nationals of Member
States who are established in a Member
State other than that of the person for
whom the services are intended.
The European Parliament and the Council,
acting in accordance with the ordinary
legislative procedure, may extend the
provisions of the Chapter to nationals of a
third country who provide services and who
are established within the Union.
Article 57
(ex Article 50 TEC)
Services shall be considered to be ‘services’
within the meaning of the Treaties where
they are normally provided for remuneration,
in so far as they are not governed by
the provisions relating to freedom of
movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
Volume I - 10
(d) activities of the professions.
Without prejudice to the provisions of the
Chapter relating to the right of establishment,
the person providing a service may,
in order to do so, temporarily pursue his
activity in the Member State where the
service is provided, under the same
conditions as are imposed by that State on
its own nationals.
Article 58
(ex Article 51 TEC)
1. Freedom to provide services in the field
of transport shall be governed by the
provisions of the Title relating to transport.
2. The liberalisation of banking and
insurance services connected with
movements of capital shall be effected in
step with the liberalisation of movement of
capital.
Article 59
(ex Article 52 TEC)
1. In order to achieve the liberalisation of a
specific service, the European Parliament
and the Council, acting in accordance with
the ordinary legislative procedure and after
consulting the Economic and Social
Committee, shall issue directives.
2. As regards the directives referred to in
paragraph 1, priority shall as a general rule
be given to those services which directly
affect production costs or the liberalisation
of which helps to promote trade in goods.
Article 60
(ex Article 53 TEC)
The Member States shall endeavour to
undertake the liberalisation of services
beyond the extent required by the directives
issued pursuant to Article 59(1), if their
general economic situation and the situation
of the economic sector concerned so permit.
To this end, the Commission shall make
recommendations to the Member States
concerned.
Article 61
(ex Article 54 TEC)
As long as restrictions on freedom to
provide services have not been abolished,
each Member State shall apply such
restrictions without distinction on grounds of
nationality or residence to all persons
providing services within the meaning of the
first paragraph of Article 56.
Article 62
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall
apply to the matters covered by this
Chapter.
(…)
TITLE V
AREA OF FREEDOM, SECURITY AND
JUSTICE
CHAPTER 1
GENERAL PROVISIONS
Article 67
(ex Article 61 TEC and ex Article 29 TEU)
1. The Union shall constitute an area of
freedom, security and justice with respect
for fundamental rights and the different
legal systems and traditions of the Member
States.
2. It shall ensure the absence of internal
border controls for persons and shall frame
a common policy on asylum, immigration
and external border control, based on
solidarity between Member States, which is
fair towards third-country nationals. For the
purpose of this Title, stateless persons shall
be treated as third-country nationals.
3. The Union shall endeavour to ensure a
high level of security through measures to
prevent and combat crime, racism and
xenophobia, and through measures for
coordination and cooperation between police
and judicial authorities and other competent
authorities, as well as through the mutual
recognition of judgments in criminal matters
and, if necessary, through the approximation
of criminal laws.
4. The Union shall facilitate access to
justice, in particular through the principle of
mutual recognition of judicial and
extrajudicial decisions in civil matters.
Article 68
The European Council shall define the
strategic guidelines for legislative and
operational planning within the area of
freedom, security and justice.
Article 69
National Parliaments ensure that the
proposals and legislative initiatives
submitted under Chapters 4 and 5 comply
with the principle of subsidiarity, in
accordance with the arrangements laid
down by the Protocol on the application of
the principles of subsidiarity and proportion-
ality.
Article 70
Without prejudice to Articles 258, 259 and
260, the Council may, on a proposal from
the Commission, adopt measures laying
down the arrangements whereby Member
States, in collaboration with the Commission,
conduct objective and impartial
evaluation of the implementation of the
Union policies referred to in this Title by
Member States’ authorities, in particular in
order to facilitate full application of the
principle of mutual recognition. The
European Parliament and national
Parliaments shall be informed of the content
and results of the evaluation.
Volume I - 11
Article 71
(ex Article 36 TEU)
A standing committee shall be set up within
the Council in order to ensure that
operational cooperation on internal security
is promoted and strengthened within the
Union. Without prejudice to Article 240, it
shall facilitate coordination of the action of
Member States’ competent authorities.
Representatives of the Union bodies, offices
and agencies concerned may be involved in
the proceedings of this committee. The
European Parliament and national
Parliaments shall be kept informed of the
proceedings.
Article 72
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the
responsibilities incumbent upon Member
States with regard to the maintenance of
law and order and the safeguarding of
internal security.
Article 73
It shall be open to Member States to
organise between themselves and under
their responsibility such forms of
cooperation and coordination as they deem
appropriate between the competent
departments of their administrations
responsible for safeguarding national
security.
Article 74
(ex Article 66 TEC)
The Council shall adopt measures to ensure
administrative cooperation between the
relevant departments of the Member States
in the areas covered by this Title, as well as
between those departments and the
Commission. It shall act on a Commission
proposal, subject to Article 76, and after
consulting the European Parliament.
Article 75
(ex Article 60 TEC)
Where necessary to achieve the objectives
set out in Article 67, as regards preventing
and combating terrorism and related
activities, the European Parliament and the
Council, acting by means of regulations in
accordance with the ordinary legislative
procedure, shall define a framework for
administrative measures with regard to
capital movements and payments, such as
the freezing of funds, financial assets or
economic gains belonging to, or owned or
held by, natural or legal persons, groups or
non-State entities.
The Council, on a proposal from the
Commission, shall adopt measures to
implement the framework referred to in the
first paragraph.
The acts referred to in this Article shall
include necessary provisions on legal
safeguards.
Article 76
The acts referred to in Chapters 4 and 5,
together with the measures referred to in
Article 74 which ensure administrative
cooperation in the areas covered by these
Chapters, shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the
Member States.
CHAPTER 2
POLICIES ON BORDER CHECKS, ASYLUM
AND IMMIGRATION
Article 77
(ex Article 62 TEC)
1. The Union shall develop a policy with a
view to:
(a) ensuring the absence of any controls on
persons, whatever their nationality, when
crossing internal borders;
(b) carrying out checks on persons and
efficient monitoring of the crossing of
external borders;
(c) the gradual introduction of an integrated
management system for external borders.
2. For the purposes of paragraph 1, the
European Parliament and the Council, acting
in accordance with the ordinary legislative
procedure, shall adopt measures
concerning:
(a) the common policy on visas and other
short-stay residence permits;
(b) the checks to which persons crossing
external borders are subject;
(c) the conditions under which nationals of
third countries shall have the freedom to
travel within the Union for a short period;
(d) any measure necessary for the gradual
establishment of an integrated management
system for external borders;
(e) the absence of any controls on persons,
whatever their nationality, when crossing
internal borders.
3. If action by the Union should prove
necessary to facilitate the exercise of the
right referred to in Article 20(2)(a), and if
the Treaties have not provided the
necessary powers, the Council, acting in
accordance with a special legislative
procedure, may adopt provisions concerning
passports, identity cards, residence permits
or any other such document. The Council
shall act unanimously after consulting the
European Parliament.
4. This Article shall not affect the
competence of the Member States
concerning the geographical demarcation of
their borders, in accordance with
international law.
Article 78
(ex Articles 63, points 1 and 2, and 64(2)
TEC)
1. The Union shall develop a common policy
on asylum, subsidiary protection and
temporary protection with a view to offering
appropriate status to any third-country
national requiring international protection
Volume I - 12
and ensuring compliance with the principle
of non-refoulement. This policy must be in
accordance with the Geneva Convention of
28 July 1951 and the Protocol of 31 January
1967 relating to the status of refugees, and
other relevant treaties.
2. For the purposes of paragraph 1, the
European Parliament and the Council, acting
in accordance with the ordinary legislative
procedure, shall adopt measures for a
common European asylum system
comprising:
(a) a uniform status of asylum for nationals
of third countries, valid throughout the
Union;
(b) a uniform status of subsidiary protection
for nationals of third countries who, without
obtaining European asylum, are in need of
international protection;
(c) a common system of temporary
protection for displaced persons in the event
of a massive inflow;
(d) common procedures for the granting
and withdrawing of uniform asylum or
subsidiary protection status;
(e) criteria and mechanisms for determining
which Member State is responsible for
considering an application for asylum or
subsidiary protection;
(f) standards concerning the conditions for
the reception of applicants for asylum or
subsidiary protection;
(g) partnership and cooperation with third
countries for the purpose of managing
inflows of people applying for asylum or
subsidiary or temporary protection.
3. In the event of one or more Member
States being confronted by an emergency
situation characterised by a sudden inflow of
nationals of third countries, the Council, on
a proposal from the Commission, may adopt
provisional measures for the benefit of the
Member State(s) concerned. It shall act
after consulting the European Parliament.
Article 79
(ex Article 63, points 3 and 4, TEC)
1. The Union shall develop a common
immigration policy aimed at ensuring, at all
stages, the efficient management of
migration flows, fair treatment of thirdcountry
nationals residing legally in Member
States, and the prevention of, and enhanced
measures to combat, illegal immigration and
trafficking in human beings.
2. For the purposes of paragraph 1, the
European Parliament and the Council, acting
in accordance with the ordinary legislative
procedure, shall adopt measures in the
following areas:
(a) the conditions of entry and residence,
and standards on the issue by Member
States of long-term visas and residence
permits, including those for the purpose of
family reunification;
(b) the definition of the rights of thirdcountry
nationals residing legally in a
Member State, including the conditions
governing freedom of movement and of
residence in other Member States;
(c) illegal immigration and unauthorised
residence, including removal and
repatriation of persons residing without
authorisation;
(d) combating trafficking in persons, in
particular women and children.
3. The Union may conclude agreements with
third countries for the readmission to their
countries of origin or provenance of thirdcountry
nationals who do not or who no
longer fulfil the conditions for entry,
presence or residence in the territory of one
of the Member States.
4. The European Parliament and the
Council, acting in accordance with the
ordinary legislative procedure, may
establish measures to provide incentives
and support for the action of Member States
with a view to promoting the integration of
third-country nationals residing legally in
their territories, excluding any harmonisation
of the laws and regulations of the
Member States.
5. This Article shall not affect the right of
Member States to determine volumes of
admission of third-country nationals coming
from third countries to their territory in
order to seek work, whether employed or
self-employed.
Article 80
The policies of the Union set out in this
Chapter and their implementation shall be
governed by the principle of solidarity and
fair sharing of responsibility, including its
financial implications, between the Member
States. Whenever necessary, the Union acts
adopted pursuant to this Chapter shall
contain appropriate measures to give effect
to this principle.
Volume I - 13
B. Charter of Fundamental Rights and Freedoms
Article 5
Prohibition of slavery and forced labour
1. No one shall be held in slavery or
servitude.
2. No one shall be required to perform
forced or compulsory labour.
3. Trafficking in human beings is prohibited.
Article 15
Freedom to choose an occupation and right
to engage in work
1. Everyone has the right to engage in work
and to pursue a freely chosen or accepted
occupation.
2. Every citizen of the Union has the
freedom to seek employment, to work, to
exercise the right of establishment and to
provide services in any Member State.
3. Nationals of third countries who are
authorised to work in the territories of the
Member States are entitled to working
conditions equivalent to those of citizens of
the Union.
Article 18
Right to asylum
The right to asylum shall be guaranteed
with due respect for the rules of the Geneva
Convention of 28 July 1951 and the Protocol
of 31 January 1967 relating to the status of
refugees and in accordance with the Treaty
on European Union and the Treaty on the
Functioning of the European Union
(hereinafter referred to as ‘the Treaties’).
Article 19
Protection in the event of removal,
expulsion or extradition
1. Collective expulsions are prohibited.
2. No one may be removed, expelled or
extradited to a State where there is a
serious risk that he or she would be
subjected to the death penalty, torture or
other inhuman or degrading treatment or
punishment.
Article 21
Non-discrimination
1. Any discrimination based on any ground
such as sex, race, colour, ethnic or social
origin, genetic features, language, religion
or belief, political or any other opinion,
membership of a national minority,
property, birth, disability, age or sexual
orientation shall be prohibited.
2. Within the scope of application of the
Treaties and without prejudice to any of
their specific provisions, any discrimination
on grounds of nationality shall be
prohibited.
Article 45
Freedom of movement and of residence
1. Every citizen of the Union has the right to
move and reside freely within the territory
of the Member States.
2. Freedom of movement and residence
may be granted, in accordance with the
Treaties, to nationals of third countries
legally resident in the territory of a Member
State.
C. Policy instruments
1. Stockholm Programme
THE STOCKHOLM PROGRAMME — AN OPEN AND SECURE EUROPE SERVING AND
PROTECTING CITIZENS
(2010/C 115/01, OJ 4 May 2010)
1. TOWARDS A CITIZENS’ EUROPE IN
THE AREA OF FREEDOM, SECURITY AND
JUSTICE
The European Council reaffirms the priority
it attaches to the development of an area of
freedom, security and justice, responding to
a central concern of the peoples of the
States brought together in the Union.
Building on the achievements of the
Tampere and Hague Programmes,
significant progress has been achieved to
date in this field. Internal border controls
have been removed in the Schengen area
and the external borders of the Union are
now managed in a more coherent manner.
Through the development of the Global
Approach to Migration, the external
dimension of the Union’s migration policy
focuses on dialogue and partnerships with
third countries, based on mutual interests.
Volume I - 14
Significant steps have been taken towards
the creation of a European Asylum System.
European agencies such as Europol,
Eurojust, the European Union Agency for
Fundamental Rights and Frontex have
reached operational maturity in their
respective fields of activity. Cooperation in
civil matters is facilitating the everyday life
of citizens and cooperation in law
enforcement provides enhanced security.
In spite of these and other important
achievements in the area of freedom,
security and justice Europe still faces
challenges. These challenges must be
addressed in a comprehensive manner.
Further efforts are thus needed in order to
improve coherence between policy areas. In
addition, cooperation with partner countries
should be intensified.
It is therefore time for a new agenda to
enable the Union and its Member-States to
build on these achievements and to meet
future challenges. To this end the European
Council has adopted this new multiannual
programme to be known as the Stockholm
Programme, for the period 2010-2014.
The European Council welcomes the
increased role that the European Parliament
and National Parliaments will play following
the entry into force of the Lisbon Treaty (1).
Citizens and representative associations will
have greater opportunity to make known
and publicly exchange their views in all
areas of Union action in accordance with
Article 11 TEU. This will reinforce the open
and democratic character of the Union for
the benefit of its people.
The Treaty facilitates the process of
reaching the goals outlined in this
programme, both for the Union institutions
and for the Member States. The role of the
Commission in preparing initiatives is
confirmed, as is the right for a group of at
least seven Member States to submit
legislative proposals. The legislative process
is improved by the use, in most sectors, of
the codecision procedure, thereby granting
full involvement of the European Parliament.
National Parliaments will play an increasing
role in the legislative process. By enhancing
also the role of the Court of Justice, the
Treaty will improve Europe’s ability to fully
implement policy in this area and ensure the
consistency of interpretation.
All opportunities offered by the Lisbon
Treaty to strengthen the European area of
freedom, security and justice for the benefit
of the citizens of the Union should be used
by the Union institutions.
This programme defines strategic guidelines
for legislative and operational planning
within the area of freedom, security and
justice in accordance with Article 68 TFEU.
1.1. Political priorities
The European Council considers that the
priority for the coming years will be to focus
on the interests and needs of citizens. The
challenge will be to ensure respect for
fundamental rights and freedoms and
integrity of the person while guaranteeing
security in Europe. It is of paramount
importance that law enforcement measures,
on the one hand, and measures to
safeguard individual rights, the rule of law
and international protection rules, on the
other, go hand in hand in the same direction
and are mutually reinforced.
All actions taken in the future should be
centred on the citizen of the Union and
other persons for whom the Union has a
responsibility. The Union should, in the
years to come, work on the following main
priorities:
Promoting citizenship and fundamental
rights: European citizenship must become a
tangible reality. The area of freedom,
security and justice must, above all, be a
single area in which fundamental rights and
freedoms are protected. The enlargement of
the Schengen area must continue. Respect
for the human person and human dignity
and for the other rights set out in the
Charter of Fundamental Rights of the
European Union and the European
Convention for the protection of Human
Rights and fundamental freedoms are core
values. For example, the exercise of these
rights and freedoms, in particular citizens’
privacy, must be preserved beyond national
borders, especially by protecting personal
data. Allowance must be made for the
special needs of vulnerable people. Citizens
of the Union and other persons must be able
to exercise their specific rights to the fullest
extent within, and even, where relevant,
outside the Union.
A Europe of law and justice: The achievement
of a European area of justice must be
consolidated so as to move beyond the
current fragmentation. Priority should be
given to mechanisms that facilitate access
to justice, so that people can enforce their
rights throughout the Union. Training of and
cooperation between public professionals
should also be improved, and resources
should be mobilised to eliminate barriers to
the recognition of legal decisions in other
Member States.
A Europe that protects: An internal security
strategy should be developed in order to
further improve security in the Union and
thus protect the lives and safety of citizens
of the Union and to tackle organised crime,
terrorism and other threats. The strategy
should be aimed at strengthening
cooperation in law enforcement, border
management, civil protection, disaster
management as well as judicial cooperation
in criminal matters in order to make Europe
more secure. Moreover, the Union needs to
base its work on solidarity between Member
Volume I - 15
States and make full use of Article 222
TFEU.
Access to Europe in a globalised world:
Access to Europe for businessmen, tourists,
students, scientists, workers, persons in
need of international protection and others
having a legitimate interest to access the
Union’s territory has to be made more
effective and efficient. At the same time,
the Union and its Member States have to
guarantee security for their citizens.
Integrated border management and visa
policies should be construed to serve these
goals.
A Europe of responsibility, solidarity and
partnership in migration and asylum
matters: The development of a forwardlooking
and comprehensive Union migration
policy, based on solidarity and responsibility,
remains a key policy objective for the
Union. Effective implementation of all
relevant legal instruments needs to be
undertaken and full use should be made of
relevant Agencies and Offices operating in
this field. Well-managed migration can be
beneficial to all stakeholders. The European
Pact on Immigration and Asylum provides a
clear basis for further development in this
field. Europe will need a flexible policy which
is responsive to the priorities and needs of
Member States and enables migrants to
take full advantage of their potential. The
objective of establishing a common asylum
system in 2012 remains and people in need
of international protection must be ensured
access to legally safe and efficient asylum
procedures. Moreover, in order to maintain
credible and sustainable immigration and
asylum systems in the Union, it is necessary
to prevent, control and combat illegal
immigration as the Union faces increasing
pressure from illegal migration flows, and
particularly the Member States at its
external borders, including at its Southern
borders in line with the conclusions of the
European Council of October 2009.
The role of Europe in a globalised world —
the external dimension: The importance of
the external dimension of the Union’s policy
in the area of freedom, security and justice
underlines the need for increased
integration of these policies into the general
policies of the Union. This external
dimension is essential to address the key
challenges we face and to provide greater
opportunities for citizens of the Union to
work and do business with countries across
the world. This external dimension is crucial
to the successful implementation of the
objectives of this programme and should in
particular be taken into account in, and be
fully coherent with all other aspects of the
Union’s foreign policy.
2. PROMOTING CITIZENS’ RIGHTS: A
EUROPE OF RIGHTS
2.1. A Europe built on fundamental rights
The Union is based on common values and
respect for fundamental rights. After the
entry into force of the Lisbon Treaty, the
rapid accession of the Union to the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
is of key importance. This will reinforce the
obligation of the Union, including its
institutions, to ensure that in all its areas of
activity, fundamental rights and freedoms,
are actively promoted. The case-law of the
Court of Justice of the European Union and
the European Court of Human Rights will be
able to continue to develop in step,
reinforcing the creation of a uniform
European fundamental and human rights
system based on the European Convention
and those set out in the Charter of
Fundamental Rights of the European Union.
The European Council invites:
— the Commission to submit a proposal on
the accession of the Union to the European
Convention for Protection of Human Rights
and Fundamental Freedoms as a matter of
urgency,
— the Union institutions and the Member
States to ensure that legal initiatives are
and remain consistent with fundamental
rights and freedoms throughout the
legislative process by way of strengthening
the application of the methodology for a
systematic and rigorous monitoring of
compliance with the European Convention
and the rights and freedoms set out in the
Charter of Fundamental Rights.
The European Council invites the Union
institutions to:
— make full use of the expertise of the
European Union Agency for Fundamental
Rights and to consult, where appropriate,
with the Agency, in line with its mandate,
on the development of policies and
legislation with implications for fundamental
rights, and to use it for the communication
to citizens of human rights issues affecting
them in their everyday life,
— pursue the Union’s efforts to bring about
the abolition of the death penalty, torture
and other inhuman and degrading
treatment,
— continue to support and promote Union
and Member States’ activity against
impunity and fight against crimes of
genocide, crimes against humanity and war
crimes; in that context, promote cooperation
between the Member States, third
countries and the international tribunals in
this field, and in particular the International
Criminal Court (ICC), and develop exchange
of judicial information and best practices in
relation to the prosecution of such crimes
through the European Network of Contact
Points in respect of persons responsible for
crimes of genocide, crimes against
humanity and war crimes.
Volume I - 16
The Union is an area of shared values,
values which are incompatible with crimes
of genocide, crimes against humanity and
war crimes, including crimes committed by
totalitarian regimes. Each Member State has
its own approach to this issue but, in the
interests of reconciliation, the memory of
those crimes must be a collective memory,
shared and promoted, where possible, by us
all. The Union must play the role of
facilitator.
The European Council invites the
Commission:
— to examine and to report to the Council in
2010 whether there is a need for additional
proposals covering publicly condoning,
denying or grossly trivialising crimes of
genocide, crimes against humanity and war
crimes directed against a group of persons
defined by reference to criteria other than
race, colour, religion, descent or national or
ethnic origin, such as social status or
political convictions.
2.2. Full exercise of the right to free
movement
The right to free movement of citizens and
their family members within the Union is
one of the fundamental principles on which
the Union is based and of European
citizenship. Citizens of the Union have the
right to move and reside freely within the
territory of the Member States, the right to
vote and stand as candidates in elections to
the European Parliament and in municipal
elections in their Member State of
residence, protection of diplomatic and
consular authorities of other Member States
etc. When exercising their rights, citizens
are ensured equal treatment to nationals
under the conditions set by Union law. The
effective implementation of relevant Union
legislation is therefore a priority.
As noted by the European Parliament,
Schengen cooperation, which has removed
internal border controls within much of the
Union, is a major achievement in the area of
freedom, security and justice. The European
Council recalls its attachment to the further
enlargement of the Schengen area. Provided
that all requirements to apply the Schengen
acquis have been fulfilled, the European
Council calls on the Council, the European
Parliament and the Commission to take all
necessary measures to allow for the
abolition of controls at internal borders with
the remaining Member States that have
declared their readiness to join the
Schengen area without delay.
Citizens of the Union must be assisted in
administrative and legal procedures they
are faced with when exercising the right to
free movement. Within the framework of
the Treaty, obstacles restricting that right in
everyday life should be removed.
The European Council invites the
Commission to:
— monitor the implementation and
application of these rules in order to
guarantee the right to free movement.
Obtaining a right of residence under Union
law for the citizens of the Union and their
family members is an advantage inherent in
the exercise of the right to free movement.
The purpose of that right is however not to
circumvent immigration rules. Freedom of
movement not only entails rights but also
imposes obligations on those that benefit
from it; abuses and fraud should be
avoided. Member States should further
safeguard and protect the right to free
movement by working together, and with
the Commission, to combat actions of a
criminal nature with forceful and proportionate
measures, with due regard to the
applicable law.
The European Council therefore further
invites the Commission to:
— monitor the implementation and
application of these rules to avoid abuse
and fraud,
— examine how best to exchange
information, inter alia, on residence permits
and documentation and how to assist
Member States’ authorities to tackle abuse
of this fundamental right effectively.
With this aim in mind, Member States
should also closely monitor the full and
correct implementation of the existing
acquis and tackle possible abuse and fraud
of the right to free movement of persons
and exchange information and statistics on
such abuse and fraud. If systematic trends
in abuse and fraud of the right to free
movement are identified, Member States
should report such trends to the Commission,
which will suggest to the Council how
these trends might be addressed through
the most appropriate means.
2.3. Living together in an area that respects
diversity and protects the most vulnerable
Since diversity enriches the Union, the
Union and its Member States must provide a
safe environment where differences are
respected and the most vulnerable
protected. Measures to tackle discrimination,
racism, anti-semitism, xenophobia and
homophobia must be vigorously pursued.
2.3.1. Racism and xenophobia
The European Council invites the
Commission to:
— report during the period of the Stockholm
Programme on the transposition of Council
Framework Decision 2008/913/JHA of 28
November 2008 on combating certain forms
and expressions of racism and xenophobia
by means of criminal law by 28 November
2013, and, if appropriate, to make
proposals for amending it,
— make full use of the existing instruments,
in particular the financing programmes to
combat racism and xenophobia.
The Member States should implement that
Framework Decision as soon as possible and
Volume I - 17
at the latest by 28 November 2010.
2.3.2. Rights of the child
The rights of the child, namely the principle
of the best interest of the child being the
child’s right to life, survival and development,
non-discrimination and respect for
the children’s right to express their opinion
and be genuinely heard in all matters
concerning them according to their age and
level of development as proclaimed in the
Charter of Fundamental Rights of the
European Union and the United Nations
Convention on the Rights of the Child,
concern all Union policies. They must be
systematically and strategically taken into
account with a view to ensuring an
integrated approach. The Commission
Communication of 2006 entitled ‘Towards
an EU Strategy on the rights of the child’
reflect important considerations in this
regard. An ambitious Union strategy on the
rights of the child should be developed.
The European Council calls upon the
Commission to:
— identify measures, to which the Union
can bring added value, in order to protect
and promote the rights of the child. Children
in particularly vulnerable situations should
receive special attention, notably children
that are victims of sexual exploitation and
abuse as well as children that are victims of
trafficking and unaccompanied minors in the
context of Union migration policy.
As regards parental child abduction, apart
from effectively implementing existing legal
instruments in this area, the possibility to
use family mediation at international level
should be explored, while taking account of
good practices in the Member States. The
Union should continue to develop criminal
child abduction alert mechanisms, by
promoting cooperation between national
authorities and interoperability of systems.
2.3.3. Vulnerable groups
All forms of discrimination remain
unacceptable. The Union and the Member
States must make a concerted effort to fully
integrate vulnerable groups, in particular
the Roma community, into society by
promoting their inclusion in the education
system and labour market and by taking
action to prevent violence against them. For
this purpose, Member States should ensure
that the existing legislation is properly
applied to tackle potential discrimination.
The Union will offer practical support and
promote best practice to help Member
States achieve this. Civil society will have a
special role to play.
Vulnerable groups in particularly exposed
situations, such as women who are the
victims of violence or of genital mutilation or
persons who are harmed in a Member State
of which they are not nationals or residents,
are in need of greater protection, including
legal protection. Appropriate financial
support will be provided, through the
available financing programmes.
The need for additional proposals as regards
vulnerable adults should be assessed in the
light of the experience acquired from the
application of the 2000 Hague Convention
on the International Protection of Adults by
the Member States which are parties or
which will become parties in the future. The
Member States are encouraged to join the
Convention as soon as possible.
2.3.4. Victims of crime, including terrorism
4. A EUROPE THAT PROTECTS
4.4. Protection against serious and
organised crime
4.4.2. Trafficking in human beings
Trafficking in human beings and smuggling
of persons are very serious crimes involving
violations of human rights and human
dignity that the Union cannot condone. The
European Council finds it necessary to
strengthen and enhance the prevention and
combating of trafficking and smuggling. This
calls for a coordinated and coherent policy
response which goes beyond the area of
freedom, security and justice and, while
taking account of new forms of exploitation,
includes external relations, development
cooperation, social affairs and employment,
education and health, gender equality and
non-discrimination. It should also benefit
from a broad dialogue between all
stakeholders, including civil society, and be
guided by an improved understanding and
research of trafficking in human beings and
smuggling of persons at Union and at
international level.
In this context, cooperation and coordination
with third countries is of crucial
importance. The Action-Oriented Paper on
the fight against trafficking in human
beings, adopted by the Council on 30
November 2009 should be used to its fullest
extent.
It is necessary that the Union develops a
consolidated Union policy against trafficking
in human beings aiming at further
strengthening the commitment of, and
efforts made, by the Union and the Member
States to prevent and combat such
trafficking. This includes building up and
strengthening partnerships with third
countries, improving coordination and
cooperation within the Union and with the
mechanisms of the Union external
dimension as an integral part of such a
policy. Progress should also be monitored
and COSI regularly informed of coordination
and cooperation against trafficking. The
fight against human trafficking must
mobilise all means of action, bringing
together prevention, law enforcement, and
victim protection, and be tailored to
combating trafficking into, within and out of
Volume I - 18
the Union.
The European Council therefore invites the
Council to consider establishing an EU AntiTrafficking
Coordinator (EU ATC) and, if it
decides so, to determine the modalities
therefore in such a way that all competences
of the Union can be used in the most
optimal way in order to reach a well
coordinated and consolidated Union policy
against trafficking in human beings.
The European Council calls for:
— the adoption of new legislation on
combating trafficking and protecting
victims,
— the Commission to examine whether ad
hoc cooperation agreements with specific
third countries to be identified by the
Council could be a way to enhance fight
against trafficking and to make proposals to
that end. In particular, such agreements
could involve full use of all leverage
available to the Union, including use of
financing programmes, cooperation for the
exchange of information, judicial
cooperation and migration tools,
— Europol, with the support of the Member
States, to step up support for information
gathering and strategic analysis, to be
carried out in cooperation with the countries
of origin and of transit,
— Eurojust to step up its efforts to
coordinate investigations conducted by
Member States’ authorities into trafficking in
human beings,
— the Commission:
— to propose further measures to protect
and assist victims through an array of
measures including the development of
compensation schemes, safe return and
assistance with reintegration into society in
their country of origin if they return
voluntarily and those relating to their stay;
the Union should establish partnerships with
the main countries of origin,
— to propose cooperative measures to
mobilise consular services in the countries
of origin with a view to preventing the
fraudulent issuing of visas. Information
campaigns aimed at potential victims,
especially women and children, could be
conducted in the countries of origin in
cooperation with the authorities there,
— to propose measures to make border
checks more efficient in order to prevent
human trafficking, in particular the
trafficking of children.
5. ACCESS TO EUROPE IN A
GLOBALISED WORLD
5.1. Integrated management of the external
borders
The Union must continue to facilitate legal
access to the territory of its Member States
while in parallel taking measures to
counteract illegal immigration and crossborder
crime and maintaining a high level of
security. The strengthening of border
controls should not prevent access to
protection systems by those persons
entitled to benefit from them, and especially
people and groups that are in vulnerable
situations. In this regard, priority will be
given to those in need of international
protection and to the reception of
unaccompanied minors. It is essential that
the activities of Frontex and of the EASO are
coordinated when it comes to the reception
of migrants at the Union’s external borders.
The European Council calls for the further
development of integrated border
management, including the reinforcement of
the role of Frontex in order to increase its
capacity to respond more effectively to
changing migration flows.
The European Council therefore:
— requests the Commission to put forward
proposals no later than early 2010 to clarify
the mandate and enhance the role of
Frontex, taking account of the results of the
evaluation of the Agency and the role and
responsibilities of the Member States in the
area of border control. Elements of these
proposals could contain preparation of clear
common operational procedures containing
clear rules of engagement for joint
operations at sea, with due regard to
ensuring protection for those in need who
travel in mixed flows, in accordance with
international law as well as increased
operational cooperation between Frontex
and countries of origin and of transit and
examination of the possibility of regular
chartering financed by Frontex. In order to
promote the proper enforcement of the
applicable statutory framework for Frontex
operations, the Commission should consider
including a mechanism for reporting and
recording incidents that can be satisfactorily
followed up by the relevant authorities,
— invites Frontex itself to consider, within
its mandate, establishing regional and/or
specialised offices to take account of the
diversity of situations, particularly the land
border to the East and the sea border to the
South. Creating such offices should in no
account undermine the unity of the Frontex
agency. Before creating such offices,
Frontex should report to the Council on its
intentions,
— invites the Commission to initiate a
debate on the long-term development of
Frontex. This debate should include, as was
envisaged in the Hague programme, the
feasibility of the creation of a European
system of border guards,
— invites the EASO to develop methods to
better identify those in need of international
protection in mixed flows, and to cooperate
with Frontex wherever possible,
— considers that the evaluation of the
Schengen area will continue to be of key
importance and that it therefore should be
improved by strengthening the role of
Frontex in this field,
— invites the Council and the Commission
to support enhanced capacity building in
third countries so that they can control
efficiently their external borders.
Volume I - 19
The European Council looks forward to the
continued phased development of the
European Border Surveillance System
(Eurosur) in the Southern and Eastern
borders, with a view to putting in place a
system using modern technologies and
supporting Member States, promoting
interoperability and uniform border
surveillance standards and to ensuring that
the necessary cooperation is established
between the Member States and with
Frontex to share necessary surveillance data
without delay. This development should
take into account the work in other relevant
areas of the Integrated Maritime Policy for
the European Union as well as being able in
the medium term to allow for cooperation
with third countries. The European Council
invites the Commission to make the
necessary proposals to achieve these
objectives.
The European Council takes note of the
ongoing studies of Member States and
Frontex in the field of automated border
control and encourages them to continue
their work in order to establish best practice
with a view to improving border controls at
the external borders.
The European Council also invites Member
States and the Commission to explore how
the different types of checks carried out at
the external border can be better
coordinated, integrated and rationalised
with a view to the twin objective of
facilitating access and improving security.
Moreover, the potential of enhanced
information exchange and closer cooperation
between border guard authorities and
other law enforcement authorities working
inside the territory should be explored, in
order to increase efficiency for all the
parties involved and fight cross-border
crime more effectively.
The European Council considers that
technology can play a key role in improving
and reinforcing the system of external
border controls. The entry into operation of
the Second generation Schengen
Information System II (SIS II) and the rollout
of the Visa Information system (VIS)
therefore remains a key objective and the
European Council calls on the Commission
and Member States to ensure that they now
become fully operational in keeping with the
timetables to be established for that
purpose. Before creating new systems, an
evaluation of these and other existing
systems should be made and the difficulties
encountered when they were set up should
be taken into account. The setting up of an
administration for large-scale IT systems
could play a central role in the possible
development of IT systems in the future.
The European Council is of the opinion that
an electronic system for recording entry to
and exit from Member States could
complement the existing systems, in order
to allow Member States to share data
effectively while guaranteeing data
protection rules. The introduction of the
system at land borders deserves special
attention and the implications to infrastructure
and border lines should be analysed
before implementation.
The possibilities of new and interoperable
technologies hold great potential for
rendering border management more
efficient as well as more secure but should
not lead to discrimination or unequal
treatment of passengers. This includes,
inter alia, the use of gates for automated
border control.
The European Council invites the
Commission to:
— present proposals for an entry/exit
system alongside a fast track registered
traveller programme with a view to such a
system becoming operational as soon as
possible,
— to prepare a study on the possibility and
usefulness of developing a European system
of travel authorisation and, where
appropriate, to make the necessary
proposals,
— to continue to examine the issue of
automated border controls and other issues
connected to rendering border management
more efficient.
5.2. Visa policy
The European Council believes that the
entry into force of the Visa Code and the
gradual roll-out of the VIS will create
important new opportunities for further
developing the common visa policy. That
policy must also be part of a broader vision
that takes account of relevant internal and
external policy concerns. The European
Council therefore encourages the
Commission and Member States to take
advantage of these developments in order
to intensify regional consular cooperation by
means of regional consular cooperation
programmes which could include, in
particular, the establishment of common
visa application centres, where necessary,
on a voluntary basis.
The European Council also invites:
— the Commission and Council to continue
to explore the possibilities created by the
conclusion of visa facilitation agreements
with third countries in appropriate cases,
— the Commission to keep the list of third
countries whose nationals are or are not
subject to a visa requirement under regular
review in accordance with appropriate
criteria relating for example to illegal
immigration, public policy and security,
which take account of the Union’s internal
and foreign policy objectives,
— the Commission to strengthen its efforts
to ensure the principle of visa reciprocity
and prevent the (re)introduction of visa
requirements by third countries towards any
Member State and to identify measures
which could be used prior to imposing the
Volume I - 20
visa reciprocity mechanism towards those
third countries.
The European Council, with a view to
creating the possibility of moving to a new
stage in the development of the common
visa policy, while taking account of Member
States competences in this area, invites the
Commission to present a study on the
possibility of establishing a common
European issuing mechanism for short term
visas. The study could also examine to what
degree an assessment of individual risk
could supplement the presumption of risk
associated with the applicant’s nationality.
6. A EUROPE OF RESPONSIBILITY,
SOLIDARITY AND PARTNERSHIP IN
MIGRATION AND ASYLUM MATTERS
The European Council recognises both the
opportunities and challenges posed by
increased mobility of persons, and
underlines that well-managed migration can
be beneficial to all stakeholders. The
European Council equally recognises that, in
the context of the important demographic
challenges that will face the Union in the
future with an increased demand for labour,
flexible migration policies will make an
important contribution to the Union’s
economic development and performance in
the longer term. The European Council is of
the opinion that the long-term consequences
of migration, for example on the labour
markets and the social situation of
migrants, have to be taken into account and
that the interconnection between migration
and integration remains crucial, inter alia,
with regard to the fundamental values of
the Union. Furthermore, the European
Council recalls that the establishment of a
Common European Asylum System (CEAS)
by 2012 remains a key policy objective for
the Union.
The European Council calls for the
development of a comprehensive and
sustainable Union migration and asylum
policy framework, which in a spirit of
solidarity can adequately and proactively
manage fluctuations in migration flows and
address situations such as the present one
at the Southern external borders. Serious
efforts are needed to build and strengthen
dialogue and partnership between the Union
and third countries, regions and organisations
in order to achieve an enhanced and
evidence-based response to these
situations, taking into account that illegal
immigrants enter the Union also via other
borders or through misuse of visa. An
important objective is to avoid the
recurrence of tragedies at sea. When tragic
situations unfortunately happen, ways
should be explored to better record and,
where possible, identify migrants trying to
reach the Union.
The European Council recognises the need
to find practical solutions which increase
coherence between migration policies and
other policy areas such as foreign and
development policy and trade, employment,
health and education policy at the European
level. In particular, the European Council
invites the Commission to explore
procedures that to a greater extent link the
development of migration policy to the
development of the post-Lisbon Strategy.
The European Council recognises the need
to make financial resources within the Union
increasingly flexible and coherent, both in
terms of scope and of applicability, to
support policy development in the field of
asylum and migration.
The European Council reaffirms the
principles set out in the Global Approach to
Migration as well as the European Pact on
Immigration and Asylum. The European
Council also recalls its conclusions of the
June and October 2009 on this subject. It
underlines the need to implement all
measures in a comprehensive manner and
evaluate them as decided. It recalls the five
basic commitments set out in the Pact:
— to organise legal migration to take
account of the priorities, needs and
reception capacities determined by each
Member State, and to encourage
integration,
— to control illegal immigration by ensuring
that illegal immigrants return to their
countries of origin or to a country of transit,
— to make border controls more effective,
— to construct a Europe of asylum,
— to create a comprehensive partnership
with the countries of origin and of transit in
order to encourage the synergy between
migration and development.
6.1. A dynamic and comprehensive
migration policy
6.1.1. Consolidating, developing and
implementing the Global Approach to
Migration
The European Council has consistently
underlined the need for Union migration
policy to be an integral part of Union foreign
policy and recognises that the Global
Approach to Migration has proven its
relevance as the strategic framework for
this purpose. Based on the original
principles of solidarity, balance and true
partnership with countries of origin and of
transit outside the Union and in line with
what already has been accomplished, the
European Council calls for the further
development and consolidation of this
integrated approach. The implementation of
the Global Approach to Migration needs to
be accelerated by the strategic use of all its
existing instruments and improved by
increased coordination. A balance between
the three areas (promoting mobility and
legal migration, optimising the link between
migration and development, and preventing
and combating illegal immigration) should
be maintained. The principal focus should
remain on cooperation with the most
relevant countries in Africa and Eastern and
Volume I - 21
South-Eastern Europe. Dialogue and
cooperation should be further developed
also with other countries and regions such
as those in Asia and Latin America on the
basis of the identification of common
interests and challenges.
To this end, the European Council
emphasises the following priorities:
— strategic, evidence-based and systematic
use of all available instruments of the Global
Approach to Migration — migration profiles,
migration missions, cooperation platforms
on migration and development and Mobility
partnerships — for long-term cooperation on
all dimensions of this policy in close
partnership with selected third countries
along priority migratory routes,
— continued and expanded use of the
Mobility partnership instrument as the main
strategic, comprehensive and long- term
cooperation framework for migration
management with third countries, adding
value to existing bilateral frameworks.
Success in implementing these partnerships
requires improved coordination and
substantial capacity- building efforts in
countries of origin, of transit and of
destination. The European Council calls for
further development of the Mobility
partnership instrument, while respecting
their voluntary nature. Partnerships should
be flexible and responsive to the needs of
both the Union and the partner countries,
and should include cooperation on all areas
of the Global Approach to Migration,
— more efficient use of the Union’s existing
cooperation instruments to increase the
capacity of partner countries, with a view to
ensuring well-functioning infrastructures
and sufficient administrative capacity to
handle all aspects of migration, including
improving their capacity to offer adequate
protection and increasing the benefits and
opportunities created by mobility.
The successful implementation of the Global
Approach to Migration should be underpinned
by regular evaluations, increased
commitment and capacity as well as
improved flexibility of the financial
instruments of both the Union and the
Member States available in this field.
6.1.2. Migration and development
The European Council underlines the need
to take further steps to maximise the
positive and minimise the negative effects
of migration on development in line with the
Global Approach on Migration. Effective
policies can provide the framework needed
to enable countries of destination and of
origin and migrants themselves to work in
partnership to enhance the effects of
international migration on development.
Efforts to promote concerted mobility and
migration with countries of origin should be
closely linked with efforts to promote the
development of opportunities for decent and
productive work and improved livelihood
options in third countries in order to
minimise the brain drain.
To that end, the European Council invites
the Commission to submit proposals before
2012 on:
— how to further ensure efficient, secure
and low-cost remittance transfers, and
enhance the development impact of
remittance transfers, as well as to evaluate
the feasibility of creating a common Union
portal on remittances to inform migrants
about transfer costs and encourage
competition among remittance service
providers,
— how diaspora groups may be further
involved in the Union development
initiatives, and how Member States may
support diaspora groups in their efforts to
enhance development in their countries of
origin,
— ways to further explore the concept of
circular migration and study ways to
facilitate orderly circulation of migrants,
either taking place within, or outside, the
framework of specific projects or
programmes including a wide-ranging study
on how relevant policy areas may contribute
to and affect the preconditions for increased
temporary and circular mobility.
The European Council recognises the need
for increased policy coherence at European
level in order to promote the positive
development effects of migration within the
scope of the Union’s activities in the
external dimension and to align international
migration more closely to the achievement
of the Millennium Development Goals.
The European Council calls on the Council to
ensure that it acts in a coordinated and
coherent manner in this field.
The connection between climate change,
migration and development needs to be
further explored, and the European Council
therefore invites the Commission to present
an analysis of the effects of climate change
on international migration, including its
potential effects on immigration to the
Union.
6.1.3. A concerted policy in keeping with
national labour-market requirements
The European Council recognises that labour
immigration can contribute to increased
competitiveness and economic vitality. In
this sense, the European Council is of the
opinion that the Union should encourage the
creation of flexible admission systems that
are responsive to the priorities, needs,
numbers and volumes determined by each
Member State and enable migrants to take
full advantage of their skills and competence.
In order to facilitate better labour
matching, coherent immigration policies as
well as better integration assessments of
the skills in demand on the European labour
markets are carried out. These systems
must have due regard for Member States’
competences, especially for managing their
Volume I - 22
labour markets, and the principle of Union
preference.
The European Council invites:
— the Commission and Council to continue
to implement the Policy Plan on Legal
Migration,
— the Commission to consider how existing
information sources and networks can be
used more effectively to ensure the
availability of the comparable data on
migration issues with a view to better
informing policy choices, which also takes
account of recent developments,
— the Commission and the Council to
evaluate existing policies that should, inter
alia, improve skills recognition and labour
matching between the Union and third
countries and the capacity to analyze labour
market needs, the transparency of
European on-line employment and
recruitment information, training,
information dissemination, and skills
matching in the country of origin,
— the Commission to assess the impact and
effectiveness of measures adopted in this
area with a view to determining whether
there is a need for consolidating existing
legislation, including regarding categories of
workers currently not covered by Union
legislation.
6.1.4. Proactive policies for migrants and
their rights
The Union must ensure fair treatment of
third country nationals who reside legally on
the territory of its Member States. A more
vigorous integration policy should aim at
granting them rights and obligations
comparable to those of citizens of the
Union. This should remain an objective of a
common immigration policy and should be
implemented as soon as possible, and no
later than 2014.
The European Council therefore invites the
Commission to submit proposals for:
— consolidation of all legislation in the area
of immigration, starting with legal
migration, which would be based on an
evaluation of the existing acquis and include
amendments needed to simplify and/or,
where necessary, extend the existing
provisions and improve their implementation
and coherence,
— evaluation and, where necessary, review
of Council Directive 2003/86/EC of 22
September 2003 on the right to family
reunification, taking into account the
importance of integration measures.
6.1.5. Integration
The successful integration of legally residing
third-country nationals remains the key to
maximising the benefits of immigration.
European cooperation can contribute to
more effective integration policies in the
Member States by providing incentives and
support for the action of Member States.
The objective of granting comparable rights,
responsibilities, and opportunities for all is
at the core of European cooperation in
integration, taking into account the
necessity of balancing migrants’ rights and
duties.
Integration is a dynamic, two-way process
of mutual interaction, requiring not only
efforts by national, regional and local
authorities but also a greater commitment
by the host community and immigrants.
Member States’ integration policies should
be supported through the further
development of structures and tools for
knowledge exchange and coordination with
other relevant policy areas, such as
employment, education and social inclusion.
Access to employment is central to
successful integration.
The European Council also invites the
Commission to support Member States’
efforts:
— through the development of a coordination
mechanism involving the Commission
and the Member States using a common
reference framework, which should improve
structures and tools for European
knowledge exchange,
— to incorporate integration issues in a
comprehensive way in all relevant policy
areas,
— towards the identification of joint
practices and European modules to support
the integration process, including essential
elements such as introductory courses and
language classes, a strong commitment by
the host community and the active
participation of immigrants in all aspects of
collective life,
— towards the development of core
indicators in a limited number of relevant
policy areas (for example employment,
education and social inclusion) for
monitoring the results of integration
policies, in order to increase the comparability
of national experiences and reinforce the
European learning process,
— for improved consultation with and
involvement of civil society, taking into
account integration needs in various policy
areas and making use of the European
Integration Forum and the European
website on Integration,
— to enhance democratic values and social
cohesion in relation to immigration and
integration of immigrants and to promote
intercultural dialogue and contacts at all
levels.
6.1.6. Effective policies to combat illegal
immigration
The European Council is convinced that
effective action against illegal immigration
remains essential when developing a
common immigration policy. The fight
against trafficking in human beings and
smuggling of persons, integrated border
management and cooperation with countries
of origin and of transit, supported by police
Volume I - 23
and judicial cooperation, in particular, must
remain a key priority for this purpose. Our
aim must be to prevent the human
tragedies which result from the activities of
traffickers.
An effective and sustainable return policy is
an essential element of a well-managed
migration system within the Union. The
Union and the Member States should
intensify the efforts to return illegally
residing third-country nationals. Necessary
financial means should be allocated for this
purpose. Such a policy must be implemented
with full respect for the principle of ‘nonrefoulement’
and for the fundamental rights
and freedoms and the dignity of the
individual returnees. Voluntary return
should be preferred, while acknowledging
the inevitable need for efficient means to
enforce returns where necessary.
In order to create a comprehensive
approach on return and readmission, it is
necessary to step up cooperation with
countries of origin and of transit within the
framework of the Global Approach to
Migration and in line with the European Pact
on Immigration and Asylum, while
recognising that all States are required to
readmit their own nationals who are illegally
staying on the territory of another State.
It is important to ensure that the
implementation of the newly adopted
instruments in the area of return and
sanctions against employers, as well as the
readmission agreements in force, is closely
monitored in order to ensure their effective
application.
The European Council believes that the
focus should be placed on:
— encouraging of voluntary return,
including through the development of
incentive systems, training, reintegration
and subsidies, and by using the possibilities
offered by existing financial instruments,
— Member States:
— to put into full effect the Union provisions
pursuant to which a return decision issued
by one Member State is applicable
throughout the Union and the effective
application of the principle of mutual
recognition of return decisions by recording
entry bans in SIS and facilitating exchange
of information,
— to improve the exchange of information
on developments at national level in the
area of regularisation, with a view to
ensuring consistency with the principles of
the European Pact on Immigration and
Asylum,
— assistance by the Commission, Frontex
and Member States on a voluntary basis, to
Member States which face specific and
disproportionate pressures, in order to
ensure the effectiveness of their return
policies towards certain third countries,
— more effective action against illegal
immigration and trafficking in human beings
and smuggling of persons by developing
information on migration routes as well as
aggregate and comprehensive information
which improves our understanding of and
response to migratory flows, promoting
cooperation on surveillance and border
controls, facilitating readmission by
promoting support measures for return and
reintegration, capacity building in third
countries,
— the conclusion of effective and
operational readmission agreements, on a
case-by-case basis at Union or bilateral
level,
— ensuring that the objective of the Union’s
efforts on readmission should add value and
increase the efficiency of return policies,
including existing bilateral agreements and
practices,
— the presentation by the Commission of an
evaluation, also of ongoing negotiations,
during 2010 of the EC/EU readmission
agreements and propose a mechanism to
monitor their implementation. The Council
should define a renewed, coherent strategy
on readmission on that basis, taking into
account the overall relations with the
country concerned, including a common
approach towards third countries that do
not cooperate in readmitting their own
nationals,
— increased practical cooperation between
Member States, for instance by regular
chartering of joint return flights, financed by
Frontex and the verification of the
nationality of third-country nationals eligible
for return, and the procurement from third
countries of travel documents,
— increased targeted training and
equipment support,
— a coordinated approach by Member
States by developing the network of liaison
officers in countries of origin and of transit.
6.1.7. Unaccompanied minors
Unaccompanied minors arriving in the
Member States from third countries
represent a particularly vulnerable group
which requires special attention and
dedicated responses, especially in the case
of minors at risk. This is a challenge for
Member States and raises issues of common
concern. Areas identified as requiring
particular attention are the exchange of
information and best practice, minor’s
smuggling, cooperation with countries of
origin, the question of age assessment,
identification and family tracing, and the
need to pay particular attention to
unaccompanied minors in the context of the
fight against trafficking in human beings. A
comprehensive response at Union level
should combine prevention, protection and
assisted return measures while taking into
account the best interests of the child.
The European Council therefore welcomes
the Commission’s initiative to:
— develop an action plan, to be adopted by
the Council, on unaccompanied minors
which underpins and supplements the
relevant legislative and financial instru-
Volume I - 24
ments and combines measures directed at
prevention, protection and assisted return.
The action plan should underline the need
for cooperation with countries of origin,
including cooperation to facilitate the return
of minors, as well as to prevent further
departures. The action plan should also
examine practical measures to facilitate the
return of the high number of unaccompanied
minors that do not require international
protection, while recognising that the best
interests for many may be the reunion with
their families and development in their own
social and cultural environment.
6.2. Asylum: a common area of protection
and solidarity
The European Council remains committed to
the objective of establishing a common area
of protection and solidarity based on a
common asylum procedure and a uniform
status for those granted international
protection. While CEAS should be based on
high protection standards, due regard
should also be given to fair and effective
procedures capable of preventing abuse. It
is crucial that individuals, regardless of the
Member State in which their application for
asylum is lodged, are offered an equivalent
level of treatment as regards reception
conditions, and the same level as regards
procedural arrangements and status
determination. The objective should be that
similar cases should be treated alike and
result in the same outcome.
6.2.1. A common area of protection
There are still significant differences
between national provisions and their
application. In order to achieve a higher
degree of harmonisation, the establishment
of CEAS, should remain a key policy
objective for the Union. Common rules, as
well as a better and more coherent
application of them, should prevent or
reduce secondary movements within the
Union, and increase mutual trust between
Member States.
The development of a Common Policy on
Asylum should be based on a full and
inclusive application of the 1951 Geneva
Convention relating to the Status of
Refugees and other relevant international
treaties. Such a policy is necessary in order
to maintain the long-term sustainability of
the asylum system and to promote
solidarity within the Union. Subject to a
report from the Commission on the legal
and practical consequences, the Union
should seek accession to the Geneva
Convention and its 1967 Protocol.
The EASO will be an important tool in the
development and implementation of the
CEAS and should contribute to strengthening
all forms of practical cooperation
between the Member States. Therefore the
Member States should play an active role in
the work of the EASO. It should further
develop a common educational platform for
national asylum officials, building in
particular on the European Asylum
Curriculum (EAC). Enhancing the
convergence and ongoing quality with a
view to reducing disparities of asylum
decisions will be another important task.
The Dublin System remains a cornerstone in
building the CEAS, as it clearly allocates
responsibility for the examination of asylum
application.
The European Council accordingly invites:
— the Council and the European Parliament
to intensify the efforts to establish a
common asylum procedure and a uniform
status in accordance with Article 78 TFEU
for those who are granted asylum or
subsidiary protection by 2012 at the latest,
— the Commission to consider, once the
second phase of the CEAS has been fully
implemented and on the basis of an
evaluation of the effect of that legislation
and of the EASO, the possibilities for
creating a framework for the transfer of
protection of beneficiaries of international
protection when exercising their acquired
residence rights under Union law,
— the Commission to undertake a feasibility
study on the Eurodac system as a
supporting tool for the entire CEAS, while
fully respecting data protection rules,
— the Commission to consider, if necessary,
in order to achieve the CEAS, proposing new
legislative instruments on the basis of an
evaluation,
— invites the Commission to finalise its
study on the feasibility and legal and
practical implications to establish joint
processing of asylum applications.
6.2.2. Sharing of responsibilities and
solidarity between the Member States
Effective solidarity with the Member States
facing particular pressures should be
promoted.
This should be achieved through a broad
and balanced approach. Mechanisms for the
voluntary and coordinated sharing of
responsibility between the Member States
should therefore be further analyzed and
developed. In particular as one of the keys
to a credible and sustainable CEAS is for
Member States to build sufficient capacity in
the national asylum systems, the European
Council urges the Member States to support
each other in building sufficient capacity in
their national asylum systems. The EASO
should have a central role in coordinating
these capacity- building measures.
The European Council therefore invites the
Commission to examine the possibilities for:
— developing the above mentioned
mechanism for sharing responsibility
between the Member States while assuring
that asylum systems are not abused, and
the principles of the CEAS are not
undermined,
— creating instruments and coordinating
Volume I - 25
mechanisms which will enable Member
States to support each other in building
capacity, building on Member States own
efforts to increase their capacity with regard
to their national asylum systems,
— using, in a more effective way, existing
Union financial systems aiming at
reinforcing internal solidarity,
— the EASO to evaluate and develop
procedures that will facilitate the
secondment of officials in order to help
those Member States facing particular
pressures of asylum seekers.
6.2.3. The external dimension of asylum
The Union should act in partnership and
cooperate with third countries hosting large
refugee populations. A common Union
approach can be more strategic and thereby
contribute more efficiently to solving
protracted refugee situations. Any
development in this area needs to be
pursued in close cooperation with the United
Nations High Commissioner for Refugees
(UNHCR) and, if appropriate, other relevant
actors. The EASO should be fully involved in
the external dimension of the CEAS. In its
dealings with third countries, the Union has
the responsibility to actively convey the
importance of acceding to, and implementing
of, the 1951 Geneva Convention and its
Protocol.
Promoting solidarity within the Union is
crucial but not sufficient to achieve a
credible and sustainable common policy on
asylum. It is therefore important to further
develop instruments to express solidarity
with third countries in order to promote and
help building capacity to handle migratory
flows and protracted refugee situations in
these countries.
The European Council invites:
— the Council and the Commission to
enhance capacity building in third countries,
in particular, their capacity to provide
effective protection, and to further develop
and expand the idea of Regional Protection
Programmes, on the basis of the forthcoming
evaluations. Such efforts should be
incorporated into the Global Approach to
Migration, and should be reflected in
national poverty reduction strategies and
not only be targeting refugees and internally
displaced persons but also local populations,
— the Council, the European Parliament and
the Commission to encourage the voluntary
participation of Member States in the joint
Union resettlement scheme and increase the
total number of resettled refugees, taking
into consideration the specific situation in
each Member State,
— the Commission to report annually to the
Council and the European Parliament on the
resettlement efforts made within the Union,
to carry out a mid-term evaluation during
2012 of the progress made, and to evaluate
the joint Union resettlement programme in
2014 with a view to identifying necessary
improvements,
— the Council and the Commission to find
ways to strengthen Union support for the
UNHCR,
— the Commission to explore, in that
context and where appropriate, new
approaches concerning access to asylum
procedures targeting main countries of
transit, such as protection programmes for
particular groups or certain procedures for
examination of applications for asylum, in
which Member States could participate on a
voluntary basis.
7. EUROPE IN A GLOBALISED WORLD —
THE EXTERNAL DIMENSION OF
FREEDOM, SECURITY AND JUSTICE
The European Council emphasises the
importance of the external dimension of the
Union’s policy in the area of freedom,
security and justice and underlines the need
for the increased integration of these
policies into the general policies of the
Union. The external dimension is crucial to
the successful implementation of the
objectives of this programme and should in
particular be fully coherent with all other
aspects of Union foreign policy.
The Union must continue to ensure effective
implementation, and to conduct evaluations
also in this area. All action should be based
on transparency and accountability, in
particular, with regard to the financial
instruments.
As reiterated by the 2008 European Security
Strategy report, internal and external
security are inseparable. Addressing
threats, even far away from our continent,
is essential to protecting Europe and its
citizens.
The European Council invites the Council
and the Commission to ensure that
coherence and complementary are
guaranteed between the political and the
operational level of activities in the area of
freedom, security and justice. Priorities in
external relations should inform and guide
the prioritisation of the work of relevant
Union agencies (Europol, Eurojust, Frontex,
CEPOL, EMCDDA and EASO).
Member States’ Liaison officers should be
encouraged to further strengthen their
cooperation, sharing of information and best
practices.
The European Council underscores the need
for complementarity between the Union and
Member States’ action. To that end,
increased commitment from the Union and
the Member States is required.
7.1. A reinforced external dimension
The European Council has decided that the
following principles will continue to guide
the Union action in the external dimension
of the area of freedom, security and justice
in the future:
Volume I - 26
— the Union has a single external relations
policy,
— the Union and the Member States must
work in partnership with third countries,
— the Union and the Member States will
actively develop and promote European and
international standards,
— the Union and the Member States will
cooperate closely with their neighbours,
— the Member States will increase further
the exchange of information between
themselves and within the Union on
multilateral and bilateral activities,
— the Union and the Member States must
act with solidarity, coherence and
complementarity,
— the Union will make full use of all ranges
of instruments available to it,
— the Member States should coordinate
with the Union so as to optimise the
effective use of resources,
— the Union will engage in information,
monitoring and evaluation, inter alia, with
the involvement of the European
Parliament,
— the Union will work with a proactive
approach in its external relations.
The European Council considers that the
policies in the area of freedom, security and
justice should be well integrated into the
general policies of the Union. The adoption
of the Lisbon Treaty offers new possibilities
for the Union to act more efficiently in the
external relations. The High Representative
of the Union for foreign affairs and security
policy, who is also a Vice President of the
Commission, the European External Action
Service and the Commission will ensure
better coherence between traditional
external policy instruments and internal
policy instruments with significant external
dimensions, such as freedom, security and
justice. Consideration should be given to the
added value that could be achieved by
including specific competence in the area of
freedom, security and justice in Union
delegations in strategic partner countries.
Furthermore, the legal personality of the
Union should enable the Union to act with
increased strength in international
organisations.
The Council recognises that CSDP and many
external actions in the area of freedom,
security and justice have shared or
complementary objectives. CSDP missions
also make an important contribution to the
Union’s internal security in their efforts to
support the fight against serious transnational
crime in their host countries and to
build respect for the rule of law. The
European Council encourages greater
cooperation and coherence between the
policies in the area of freedom, security and
justice and CSDP to further these shared
objectives.
The new basis under the Treaty for
concluding international agreements will
ensure that the Union can negotiate more
effectively with key partners. The European
Council intends to capitalise on all these
new instruments to the fullest extent.
The European Council underscores the need
for complementary between the Union and
Member States’ action. This will require a
further commitment from the Union and the
Member States. The European Council
therefore asks the Commission to report on
ways to ensure complementary by
December 2011 at the latest.
7.2. Human rights
The Lisbon Treaty offers the Union new
instruments as regards the protection of
fundamental rights and freedoms both
internally and externally. The values of the
Union should be promoted and strict
compliance with and development of
international law should be respected. The
European Council calls for the establishment
of a Human Rights Action Plan to promote
its values in the external dimension of the
policies in the area of freedom, security and
justice. This Plan should be examined by the
European Council and should take into
account that internal and external aspects
of Human Rights are interlinked, for
instance as regards the principle of nonrefoulement
or the use of death penalty by
partners that the Union cooperates with.
The Plan should contain specific measures in
the short, medium and long term, and
designate who is responsible for carrying
out the actions.
7.3. Continued thematic priorities with new
tools
The European Council considers that the key
thematic priorities identified in the previous
strategy remain valid, i.e. the fight against
terrorism, organised crime, corruption,
drugs, the exchange of personal data in a
secure environment and managing
migration flows. The fight against trafficking
in human beings and smuggling of persons
needs to be stepped up.
Building on the Strategy for the external
dimension of JHA: Global freedom, security
and justice adopted in 2005 and other
relevant acquis in this field, such as the
Global Approach to Migration, Union
external cooperation should focus on areas
where Union activity provides added value,
in particular:
— Migration and asylum, with a view to
increasing Union dialogue and cooperation
with countries of origin and of transit in
order to improve their capacity to carry out
border control, to fight against illegal
immigration, to better manage migration
flows and to ensure protection as well as to
benefit from the positive effects of migration
on development; return and readmission is
a priority in the Union’s external relations,
— Security, by engaging with third countries
to combat serious and organised crime,
terrorism, drugs, trafficking in human
beings and smuggling of persons, inter alia,
Volume I - 27
by focusing the Union’s counter-terrorism
activities primarily on prevention and by
protecting critical infrastructures, internal
and external security are inseparable.
Addressing threats, even far away from our
continent, is essential to protecting Europe
and its citizens,
— Information exchange that flows
securely, efficiently and with adequate data
protection standards between the Union and
third countries,
— Justice, to promote the rule of law and
human rights, good governance, fight
against corruption, the civil law dimension,
promote security and stability and create a
safe and solid environment for business,
trade and investment,
— Civil protection and disaster management,
in particular to develop capacities of
prevention and answers to major
technological and natural catastrophes as
well as to meet threats from terrorists.
The European Council invites the
Commission to:
— examine whether ad hoc cooperation
agreements with specific third countries to
be identified by the Council could be a way
of enhancing the fight against trafficking in
human beings and smuggling of persons
and making proposals to that end. In
particular, such agreements could involve
full use of all leverage available to the
Union, including the use of existing
financing programmes, cooperation in the
exchange of information, judicial
cooperation and migration tools.
The threat of terrorism and organised crime
remains high. It is therefore necessary to
work with key strategic partners to
exchange information while continuing to
work on longer- term objectives such as
measures to prevent radicalisation and
recruitment, as well as the protection of
critical infrastructures. Operational
agreements by Eurojust, Europol, as well as
working arrangements with Frontex, should
be strengthened.
7.4. Agreements with third countries
The Lisbon Treaty provides for new and
more efficient procedures for the conclusion
of agreements with third countries. The
European Council recommends that such
agreements, in particular, as regards
judicial cooperation as well as in the field of
civil law, should be considered to be used
more frequently, while taking account of
multilateral mechanisms. It notes however
that Member States will maintain the option
of entering into bilateral agreements which
comply with Union law, and that a legal
framework has been created for certain
bilateral agreements in civil law as well.
Protection of personal data is a core activity
of the Union. There is a need for a coherent
legislative framework for the Union for
personal data transfers to third countries for
law enforcement. A framework model
agreement consisting of commonly
applicable core elements of data protection
could be created.
7.5. Geographical priorities and international
organisations
Union action in external relations should
focus on key partners, in particular:
— Candidate countries and countries with a
European Union membership perspective for
which the main objective would be to assist
them in transposing the acquis,
— European neighbourhood countries, and
other key partners with whom the Union
should cooperate on all issues in the area of
freedom, security and justice,
— EEA/Schengen states have a close
relationship with the Union. This motivates
closer cooperation, based on mutual trust
and solidarity to enhance the positive
effects of the internal market as well as to
promote Union internal security,
— the United States of America, the Russian
Federation and other strategic partners with
which the Union should cooperate on all
issues in the area of freedom, security and
justice,
— Other countries or regions of priority, in
terms of their contribution to EU strategic or
geographical priorities,
— International organisations such as the
UN and the Council of Europe with whom
the Union needs to continue to work and
within which the Union should coordinate its
position.
In the Western Balkans, Stabilisation and
Association Agreements are progressively
entering into force and notable progress has
been made in the area of visa policy, with
visa facilitation and readmission agreements
in place and a comprehensive visa
liberalisation dialogue already achieved for
some countries and still under way for
others. Further efforts, including use of
financial instruments, are needed to combat
organised crime and corruption, to
guarantee fundamental rights and freedoms
and to build administrative capacities in
border management, law enforcement and
the judiciary in order to make the European
perspective a reality.
The Union and Turkey have agreed to
intensify their cooperation to meet the
common challenge of managing migration
flows and to tackle illegal immigration in
particular. This cooperation should focus on
joint responsibility, solidarity, cooperation
with all Member States and common
understanding, taking into account that
Turkey neighbours the Union’s external
borders, its negotiation process and the
Union’s existing financial assistance in
relevant areas, including border control.
Concluding the negotiations on the
readmission agreement with Turkey is a
priority. Until then, already existing bilateral
agreements should be adequately
implemented.
The European Council emphasises that the
Volume I - 28
European Neighbourhood Policy (ENP) offers
future opportunities for the Union to act in a
coordinated and efficient manner and
contribute to strengthen capacity and
institution-building for an independent and
impartial judiciary, law enforcement
authorities and anti-corruption efforts, as
well as increasing and facilitating the
mobility of citizens of the partner countries.
As regards the Eastern Partnership
countries, the Union is holding out the
prospect of concluding Association
Agreements (with substantial parts
concerning the area of freedom, security
and justice) with those countries and
supporting, the mobility of citizens and, as a
long-term perspective, visa liberalisation in
a secure environment.
The European Council calls for the
development before the end of 2010 of a
plan on how to take cooperation with the
Eastern Partnership countries forward,
comprising freedom, security and justice
aspects of the Eastern Partnership as well
as chapters on freedom, security and justice
of the ENP Action Plans (or their successor
documents) of the countries concerned. This
plan should also list the gradual steps
towards full visa liberalisation as a longterm
goal for individual partner countries on
a case- by-case basis, as well as describe
the conditions for well- managed and secure
mobility, mentioned in the Joint Declaration
of the Prague Eastern Partnership Summit.
The European Council will review the plan
by the end of 2012, and in particular to
assess its impact on the ground.
The Union should increase its efforts to
support stability and security of the Black
Sea Region as a whole and enhance further
the Black Sea Synergy regional cooperation
initiative. Activities should in particular
focus on border management, migration
management, customs cooperation and the
rule of law as well as fight against crossborder
crime.
As regards the Union for the Mediterranean,
it will be necessary to enhance the work
started in the context of the Barcelona
process and the Euro-Mediterranean
Partnership, in particular regarding
migration (maritime), border surveillance,
preventing and fighting drug trafficking, civil
protection, law enforcement and judicial
cooperation. The European Council invites
the Commission in cooperation with the
High Representative of the Union for foreign
affairs and security policy to submit such a
plan in 2010 and asks Coreper to prepare as
soon as possible the decisions to be taken
by the Council. The European Council will
review the Plan by the end of 2012, and in
particular to assess its impact on the
ground.
As regards the situation in the Mediterranean
area, the European Council considers
that a stronger partnership with third
countries of transit and of origin is
necessary, based on reciprocal requirements
and operational support, including border
control, fight against organised crime,
return and readmission. Rapid action to face
the challenges in this region is a priority.
Cooperation has been intensified with the
USA in the past 10 years including on all
matters relating to the area of freedom,
security and justice. Regular Ministerial
Troika and Senior officials’ meetings are
held under each Presidency. In line with
what has been laid down in the ‘Washington
Statement’ adopted at the Ministerial Troika
meeting in October 2009, the dialogue
should continue and be deepened.
Ongoing cooperation in the fight against
terrorism and transnational crime, border
security, visa policy, migration and judicial
cooperation should be pursued. An
agreement on the protection of personal
data exchanged for law enforcement
purposes needs to be negotiated and
concluded rapidly. The Union and the USA
will work together to complete visa-free
travel between the USA and the Union as
soon as possible and increase security for
travellers. Joint procedures should be set up
for the implementation of the agreements
on judicial cooperation, and regular
consultations need to take place.
The Common Space for an area of freedom,
security and justice and the new agreement
currently under negotiation will provide the
framework for intense and improved future
cooperation with the Russian Federation.
Building also on the outcomes of the biannual
Permanent Partnership Councils on
freedom, security and justice, the Union and
Russia should continue to cooperate within
the framework of the visa dialogue and on
legal migration, while tackling illegal
immigration, enhance common fight against
organised crime and particularly operational
cooperation, and improve and intensify
judicial cooperation. An agreement, which
should satisfy high standards of data
protection, should be made with Eurojust as
soon as possible. A framework agreement
on information exchange should be
concluded in that context. The visa dialogue
must continue. The visa facilitation and
readmission agreement should be
implemented fully.
The European Council notes that the 2007
EU-Africa Joint Strategy and Action Plan
define the scope of cooperation in the areas
of counter-terrorism, transnational crime
and drug trafficking. Both within the EUAfrica
Partnership on Mobility, Migration and
Employment (MME) and the Global
Approach to Migration, and the follow up
process of the Rabat, Paris and Tripoli
conferences, the dialogue on migration
should be deepened and intensified with
African Partners, focussing on countries
along the irregular migration routes to
Europe with a view to assisting those
countries in their efforts to draw up
migration policies and responding to illegal
immigration at sea and on the borders.
Volume I - 29
Efforts should be made to enhance
cooperation, including the swift conclusion
of readmission agreements, with Algeria,
Morocco and Egypt, and, in line with the
European Council conclusions of October
2009, with Libya.
West Africa has recently developed into a
major hub for drug trafficking from South
America to Europe and will require
enhanced attention and assistance to stem
drug trafficking as well as other transnational
crime and terrorism (within the
Sahel).
The dialogues with China and India on
counter-terrorism aspects should be
broadened and cover other priority areas
such as intellectual property rights,
migration, including fight against illegal
immigration and judicial cooperation. When
agreements on judicial cooperation are
entered into, the Union will continue to
require that the death penalty is an issue
where no compromises can be made. The
dialogue with India on migration should be
intensified and cover all migration-related
aspects. With regard to China, the dialogue
on Human Rights must be continued. The
dialogue with Brazil will have to become
deeper and wider in the years to come. The
Strategic Partnership and the Joint Action
Plan should be implemented more efficiently
and more specific measures should be
considered.
With other countries and regions the Union
will cooperate regionally or bilaterally as
appropriate. The dialogue with LatinAmerican
and Caribbean countries, on
migration, drugs trafficking, money
laundering and other fields of mutual
interest should be pursued within the
regional framework (EU-LAC) and within the
framework of the FATF. Work will have to
continue with the Central Asian countries
along the trafficking routes to Europe.
Efforts should also be made to enhance
cooperation with Afghanistan on drugs,
including the implementation of the Action
Oriented Paper on drug trafficking, and with
Afghanistan and Pakistan on terrorism and
migration issues.
As regards Afghanistan and Iraq, focus
should be kept on effectively addressing the
refugee situation through a comprehensive
approach. Efforts should be made to
address illegal immigration flows and to
conclude readmission agreements with them
as well as with Bangladesh.
7.6. International organisations and
promotion of European and international
standards
The European Council reiterates its
commitment to effective multilateralism that
supplements the bilateral and regional
partnership with third countries and regions.
The UN remains the most important
international organisation for the Union. The
Lisbon Treaty creates the basis for more
coherent and efficient Union participation in
the work of the UN and other international
organisations.
The Union should continue to promote
European and international standards and
the ratification of international conventions,
in particular those developed under the
auspices of the UN and the Council of
Europe.
The work of the Council of Europe is of
particular importance. It is the hub of the
European values of democracy, human
rights and the rule of law. The Union must
continue to work together with the Council
of Europe based on the Memorandum of
Understanding between the Council of
Europe and the European Union signed in
2007 and support its important conventions
such as the Convention on Action against
Trafficking in Human Beings and the
Convention on the Protection of Children
against Sexual Exploitation and Sexual
Abuse.
For law enforcement cooperation, Interpol is
an important partner for the Union. Civil law
cooperation is in particular made in the
framework of the Hague Conference on
Private International Law. The Union should
continue to support the Conference and
encourage its partners to ratify the
conventions where the Union is or will
become a Party or where all Member States
are Parties.
LIST OF ABBREVIATIONS
CBRN Chemical, Biological, Radiological and Nuclear
CEAS Common European Asylum System
CEPOL European Police College
COSI Standing Committee on Internal Security
CSDP Common Security and Defence Policy
EAC European Asylum Curriculum
EASO European Asylum Support Office
ECRIS European Criminal Records Information System
EMCDDA European Monitoring Centre for Drugs and Drug Addiction
ENP European Neighbourhood Policy
EPRIS European Police Records Index System
EU European Union
EU ATC EU Anti-Trafficking Coordinator
Volume I - 30
EUCPN European Crime Prevention Network
Eurosur European Border Surveillance System
FATF Financial Action Task Force
FIUs Financial Intelligence Units
GRECO Council of Europe Group of States against Corruption
ICC International Criminal Court
ICT Information and Communication Technology
JITs Joint Investigative Teams
MIC Monitoring and Information Centre
OCTA Organised Crime Threat Assessment
OECD Organisation for Economic Cooperation and Development
OPC Observatory for the Prevention of Crime
PNR Passenger Name Record
SIS II Second generation Schengen Information System
TEU Treaty on the European Union
TFEU Treaty on the Functioning of the European Union
UNCAC United Nations Convention against Corruption
UNHCR United Nations High Commissioner for Refugees
VIS Visa Information System
Volume I - 31
II. Citizenship and Free Movement of EU citizens and
Their Families
A. Directive 2004/38/EC of the European Parliament and of
the Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside freely
within the territory of the Member States amending Regulation
(EEC) No 1612/68 and repealing Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC
B. Regulation (EU) No 492/2011 of the European Parliament
and of the Council of 5 April 2011 on freedom of movement
for workers within the Union
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B ►C1 DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004
on the right of citizens of the Union and their family members to move and reside freely within the territory of
the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
(Text with EEA relevance) ◄
(OJ L 158, 30.4.2004, p. 77)
Amended by:
Official Journal
No page date
►M1 Regulation (EU) No 492/2011 of the European Parliament and of the
Council of 5 April 2011
L 141 1 27.5.2011
Corrected by:
►C1 Corrigendum, OJ L 229, 29.6.2004, p. 35 (2004/38/EC)
►C2 Corrigendum, OJ L 30, 3.2.2005, p. 27 (2004/38/EC)
►C3 Corrigendum, OJ L 197, 28.7.2005, p. 34 (2004/38/EC)
2004L0038 — EN — 16.06.2011 — 001.001 — 1
▼C1
DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
of 29 April 2004
on the right of citizens of the Union and their family members to
move and reside freely within the territory of the Member States
amending Regulation (EEC) No 1612/68 and repealing Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC,
75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Articles 12, 18, 40, 44 and 52 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Economic and Social
Committee (2),
Having regard to the opinion of the Committee of the Regions (3),
Acting in accordance with the procedure laid down in Article 251 of the
Treaty (4),
Whereas:
(1) Citizenship of the Union confers on every citizen of the Union a
primary and individual right to move and reside freely within the
territory of the Member States, subject to the limitations and
conditions laid down in the Treaty and to the measures adopted
to give it effect.
(2) The free movement of persons constitutes one of the fundamental
freedoms of the internal market, which comprises an area without
internal frontiers, in which freedom is ensured in accordance with
the provisions of the Treaty.
(3) Union citizenship should be the fundamental status of nationals
of the Member States when they exercise their right of free
movement and residence. It is therefore necessary to codify and
review the existing Community instruments dealing separately
with workers, self-employed persons, as well as students and
other inactive persons in order to simplify and strengthen the
right of free movement and residence of all Union citizens.
▼B
2004L0038 — EN — 16.06.2011 — 001.001 — 2
(1) OJ C 270 E, 25.9.2001, p. 150.
(2) OJ C 149, 21.6.2002, p. 46.
(3) OJ C 192, 12.8.2002, p. 17.
(4) Opinion of the European Parliament of 11 February 2003 (OJ C 43 E,
19.2.2004, p. 42), Council Common Position of 5 December 2003 (OJ C
54 E, 2.3.2004, p. 12) and Position of the European Parliament of 10 March
2004 (not yet published in the Official Journal).
(4) With a view to remedying this sector-by-sector, piecemeal
approach to the right of free movement and residence and facilitating
the exercise of this right, there needs to be a single legislative
act to amend Council Regulation (EEC) No 1612/68 of
15 October 1968 on freedom of movement for workers within
the Community (1), and to repeal the following acts: Council
Directive 68/360/EEC of 15 October 1968 on the abolition of
restrictions on movement and residence within the Community
for workers of Member States and their families (2), Council
Directive 73/148/EEC of 21 May 1973 on the abolition of
restrictions on movement and residence within the Community
for nationals of Member States with regard to establishment and
the provision of services (3), Council Directive 90/364/EEC of
28 June 1990 on the right of residence (4), Council Directive
90/365/EEC of 28 June 1990 on the right of residence for
employees and self-employed persons who have ceased their
occupational activity (5) and Council Directive 93/96/EEC of
29 October 1993 on the right of residence for students (6).
(5) The right of all Union citizens to move and reside freely within
the territory of the Member States should, if it is to be exercised
under objective conditions of freedom and dignity, be also
granted to their family members, irrespective of nationality. For
the purposes of this Directive, the definition of ‘family member’
should also include the registered partner if the legislation of the
host Member State treats registered partnership as equivalent to
marriage.
(6) In order to maintain the unity of the family in a broader sense
and without prejudice to the prohibition of discrimination on
grounds of nationality, the situation of those persons who are
not included in the definition of family members under this
Directive, and who therefore do not enjoy an automatic right of
entry and residence in the host Member State, should be
examined by the host Member State on the basis of its own
national legislation, in order to decide whether entry and
residence could be granted to such persons, taking into
consideration their relationship with the Union citizen or any
other circumstances, such as their financial or physical
dependence on the Union citizen.
(7) The formalities connected with the free movement of Union
citizens within the territory of Member States should be clearly
defined, without prejudice to the provisions applicable to national
border controls.
▼C1
2004L0038 — EN — 16.06.2011 — 001.001 — 3
(1) OJ L 257, 19.10.1968, p. 2. Regulation as last amended by Regulation (EEC)
No 2434/92 (OJ L 245, 26.8.1992, p. 1).
(2) OJ L 257, 19.10.1968, p. 13. Directive as last amended by the 2003 Act of
Accession.
(3) OJ L 172, 28.6.1973, p. 14.
(4) OJ L 180, 13.7.1990, p. 26.
(5) OJ L 180, 13.7.1990, p. 28.
(6) OJ L 317, 18.12.1993, p. 59.
(8) With a view to facilitating the free movement of family members
who are not nationals of a Member State, those who have already
obtained a residence card should be exempted from the
requirement to obtain an entry visa within the meaning of
Council Regulation (EC) No 539/2001 of 15 March 2001
listing the third countries whose nationals must be in possession
of visas when crossing the external borders and those whose
nationals are exempt from that requirement (1) or, where appropriate,
of the applicable national legislation.
(9) Union citizens should have the right of residence in the host
Member State for a period not exceeding three months without
being subject to any conditions or any formalities other than the
requirement to hold a valid identity card or passport, without
prejudice to a more favourable treatment applicable to
job-seekers as recognised by the case-law of the Court of Justice.
(10) Persons exercising their right of residence should not, however,
become an unreasonable burden on the social assistance system
of the host Member State during an initial period of residence.
Therefore, the right of residence for Union citizens and their
family members for periods in excess of three months should
be subject to conditions.
(11) The fundamental and personal right of residence in another
Member State is conferred directly on Union citizens by the
Treaty and is not dependent upon their having fulfilled administrative
procedures.
(12) For periods of residence of longer than three months, Member
States should have the possibility to require Union citizens to
register with the competent authorities in the place of residence,
attested by a registration certificate issued to that effect.
(13) The residence card requirement should be restricted to family
members of Union citizens who are not nationals of a Member
State for periods of residence of longer than three months.
(14) The supporting documents required by the competent authorities
for the issuing of a registration certificate or of a residence card
should be comprehensively specified in order to avoid divergent
administrative practices or interpretations constituting an undue
obstacle to the exercise of the right of residence by Union
citizens and their family members.
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(1) OJ L 81, 21.3.2001, p. 1. Regulation as last amended by Regulation (EC)
No 453/2003 (OJ L 69, 13.3.2003, p. 10).
(15) Family members should be legally safeguarded in the event of the
death of the Union citizen, divorce, annulment of marriage or
termination of a registered partnership. With due regard for
family life and human dignity, and in certain conditions to
guard against abuse, measures should therefore be taken to
ensure that in such circumstances family members already
residing within the territory of the host Member State retain
their right of residence exclusively on a personal basis.
(16) As long as the beneficiaries of the right of residence do not
become an unreasonable burden on the social assistance system
of the host Member State they should not be expelled. Therefore,
an expulsion measure should not be the automatic consequence of
recourse to the social assistance system. The host Member State
should examine whether it is a case of temporary difficulties and
take into account the duration of residence, the personal circumstances
and the amount of aid granted in order to consider
whether the beneficiary has become an unreasonable burden on
its social assistance system and to proceed to his expulsion. In no
case should an expulsion measure be adopted against workers,
self-employed persons or job-seekers as defined by the Court of
Justice save on grounds of public policy or public security.
(17) Enjoyment of permanent residence by Union citizens who have
chosen to settle long term in the host Member State would
strengthen the feeling of Union citizenship and is a key
element in promoting social cohesion, which is one of the fundamental
objectives of the Union. A right of permanent residence
should therefore be laid down for all Union citizens and their
family members who have resided in the host Member State in
compliance with the conditions laid down in this Directive during
a continuous period of five years without becoming subject to an
expulsion measure.
(18) In order to be a genuine vehicle for integration into the society of
the host Member State in which the Union citizen resides, the
right of permanent residence, once obtained, should not be
subject to any conditions.
(19) Certain advantages specific to Union citizens who are workers or
self-employed persons and to their family members, which may
allow these persons to acquire a right of permanent residence
before they have resided five years in the host Member State,
should be maintained, as these constitute acquired rights,
conferred by Commission Regulation (EEC) No 1251/70 of
29 June 1970 on the right of workers to remain in the territory
of a Member State after having been employed in that State (1)
and Council Directive 75/34/EEC of17 December 1974
concerning the right of nationals of a Member State to remain
in the territory of another Member State after having pursued
therein an activity in a self-employed capacity (2).
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(1) OJ L 142, 30.6.1970, p. 24.
(2) OJ L 14, 20.1.1975, p. 10.
(20) In accordance with the prohibition of discrimination on grounds
of nationality, all Union citizens and their family members
residing in a Member State on the basis of this Directive
should enjoy, in that Member State, equal treatment with
nationals in areas covered by the Treaty, subject to such
specific provisions as are expressly provided for in the Treaty
and secondary law.
(21) However, it should be left to the host Member State to decide
whether it will grant social assistance during the first three
months of residence, or for a longer period in the case of
job-seekers, to Union citizens other than those who are workers
or self-employed persons or who retain that status or their family
members, or maintenance assistance for studies, including vocational
training, prior to acquisition of the right of permanent
residence, to these same persons.
(22) The Treaty allows restrictions to be placed on the right of free
movement and residence on grounds of public policy, public
security or public health. In order to ensure a tighter definition
of the circumstances and procedural safeguards subject to which
Union citizens and their family members may be denied leave to
enter or may be expelled, this Directive should replace Council
Directive 64/221/EEC of 25 February 1964 on the coordination
of special measures concerning the movement and residence of
foreign nationals, which are justified on grounds of public policy,
public security or public health (1).
(23) Expulsion of Union citizens and their family members on
grounds of public policy or public security is a measure that
can seriously harm persons who, having availed themselves of
the rights and freedoms conferred on them by the Treaty, have
become genuinely integrated into the host Member State. The
scope for such measures should therefore be limited in
accordance with the principle of proportionality to take account
of the degree of integration of the persons concerned, the length
of their residence in the host Member State, their age, state of
health, family and economic situation and the links with their
country of origin.
(24) Accordingly, the greater the degree of integration of Union
citizens and their family members in the host Member State,
the greater the degree of protection against expulsion should
be. Only in exceptional circumstances, where there are imperative
grounds of public security, should an expulsion measure be taken
against Union citizens who have resided for many years in the
territory of the host Member State, in particular when they were
born and have resided there throughout their life. In addition,
such exceptional circumstances should also apply to an
expulsion measure taken against minors, in order to protect
their links with their family, in accordance with the United
Nations Convention on the Rights of the Child, of
20 November 1989.
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(1) OJ 56, 4.4.1964, p. 850. Directive as last amended by Directive 75/35/EEC
(OJ 14, 20.1.1975, p. 14).
(25) Procedural safeguards should also be specified in detail in order
to ensure a high level of protection of the rights of Union citizens
and their family members in the event of their being denied leave
to enter or reside in another Member State, as well as to uphold
the principle that any action taken by the authorities must be
properly justified.
(26) In all events, judicial redress procedures should be available to
Union citizens and their family members who have been refused
leave to enter or reside in another Member State.
(27) In line with the case-law of the Court of Justice prohibiting
Member States from issuing orders excluding for life persons
covered by this Directive from their territory, the right of
Union citizens and their family members who have been
excluded from the territory of a Member State to submit a
fresh application after a reasonable period, and in any event
after a three year period from enforcement of the final
exclusion order, should be confirmed.
(28) To guard against abuse of rights or fraud, notably marriages of
convenience or any other form of relationships contracted for the
sole purpose of enjoying the right of free movement and
residence, Member States should have the possibility to adopt
the necessary measures.
(29) This Directive should not affect more favourable national
provisions.
(30) With a view to examining how further to facilitate the exercise of
the right of free movement and residence, a report should be
prepared by the Commission in order to evaluate the opportunity
to present any necessary proposals to this effect, notably on the
extension of the period of residence with no conditions.
(31) This Directive respects the fundamental rights and freedoms and
observes the principles recognised in particular by the Charter of
Fundamental Rights of the European Union. In accordance with
the prohibition of discrimination contained in the Charter,
Member States should implement this Directive without discrimination
between the beneficiaries of this Directive on grounds such
as sex, race, colour, ethnic or social origin, genetic characteristics,
language, religion or beliefs, political or other opinion,
membership of an ethnic minority, property, birth, disability,
age or sexual orientation,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement
and residence within the territory of the Member States by Union
citizens and their family members;
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(b) the right of permanent residence in the territory of the Member
States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of
public policy, public security or public health.
Article 2
Definitions
For the purposes of this Directive:
1. ‘Union citizen’ means any person having the nationality of a
Member State;
2. ‘family member’ means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a
registered partnership, on the basis of the legislation of a
Member State, if the legislation of the host Member State
treats registered partnerships as equivalent to marriage and in
accordance with the conditions laid down in the relevant legislation
of the host Member State;
(c) the direct descendants who are under the age of 21 or are
dependants and those of the spouse or partner as defined in
point (b);
(d) the dependent direct relatives in the ascending line and those of
the spouse or partner as defined in point (b);
3. ‘host Member State’ means the Member State to which a Union
citizen moves in order to exercise his/her right of free movement
and residence.
Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or
reside in a Member State other than that of which they are a national,
and to their family members as defined in point 2 of Article 2 who
accompany or join them.
2. Without prejudice to any right to free movement and residence the
persons concerned may have in their own right, the host Member State
shall, in accordance with its national legislation, facilitate entry and
residence for the following persons:
(a) any other family members, irrespective of their nationality, not
falling under the definition in point 2 of Article 2 who, in the
country from which they have come, are dependants or members
of the household of the Union citizen having the primary right of
residence, or where serious health grounds strictly require the
personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship,
duly attested.
The host Member State shall undertake an extensive examination of the
personal circumstances and shall justify any denial of entry or residence
to these people.
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CHAPTER II
RIGHT OF EXIT AND ENTRY
Article 4
Right of exit
1. Without prejudice to the provisions on travel documents applicable
to national border controls, all Union citizens with a valid identity card
or passport and their family members who are not nationals of a
Member State and who hold a valid passport shall have the right to
leave the territory of a Member State to travel to another Member State.
2. No exit visa or equivalent formality may be imposed on the
persons to whom paragraph 1 applies.
3. Member States shall, acting in accordance with their laws, issue to
their own nationals, and renew, an identity card or passport stating their
nationality.
4. The passport shall be valid at least for all Member States and for
countries through which the holder must pass when travelling between
Member States. Where the law of a Member State does not provide for
identity cards to be issued, the period of validity of any passport on
being issued or renewed shall be not less than five years.
Article 5
Right of entry
1. Without prejudice to the provisions on travel documents applicable
to national border controls, Member States shall grant Union citizens
leave to enter their territory with a valid identity card or passport and
shall grant family members who are not nationals of a Member State
leave to enter their territory with a valid passport.
No entry visa or equivalent formality may be imposed on Union
citizens.
2. Family members who are not nationals of a Member State shall
only be required to have an entry visa in accordance with
Regulation (EC) No 539/2001 or, where appropriate, with national
law. For the purposes of this Directive, possession of the valid
residence card referred to in Article 10 shall exempt such family
members from the visa requirement.
Member States shall grant such persons every facility to obtain the
necessary visas. Such visas shall be issued free of charge as soon as
possible and on the basis of an accelerated procedure.
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3. The host Member State shall not place an entry or exit stamp in
the passport of family members who are not nationals of a Member
State provided that they present the residence card provided for in
Article 10.
4. Where a Union citizen, or a family member who is not a national
of a Member State, does not have the necessary travel documents or, if
required, the necessary visas, the Member State concerned shall, before
turning them back, give such persons every reasonable opportunity to
obtain the necessary documents or have them brought to them within a
reasonable period of time or to corroborate or prove by other means that
they are covered by the right of free movement and residence.
5. The Member State may require the person concerned to report
his/her presence within its territory within a reasonable and
non-discriminatory period of time. Failure to comply with this
requirement may make the person concerned liable to proportionate
and non-discriminatory sanctions.
CHAPTER III
RIGHT OF RESIDENCE
Article 6
Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of
another Member State for a period of up to three months without any
conditions or any formalities other than the requirement to hold a valid
identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members
in possession of a valid passport who are not nationals of a Member
State, accompanying or joining the Union citizen.
Article 7
Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory
of another Member State for a period of longer than three months if
they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members
not to become a burden on the social assistance system of the host
Member State during their period of residence and have comprehensive
sickness insurance cover in the host Member State; or
(c) — are enrolled at a private or public establishment, accredited or
financed by the host Member State on the basis of its legislation
or administrative practice, for the principal purpose of following
a course of study, including vocational training; and
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— have comprehensive sickness insurance cover in the host
Member State and assure the relevant national authority, by
means of a declaration or by such equivalent means as they
may choose, that they have sufficient resources for themselves
and their family members not to become a burden on the social
assistance system of the host Member State during their period
of residence; or
(d) are family members accompanying or joining a Union citizen who
satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to
family members who are not nationals of a Member State, accompanying
or joining the Union citizen in the host Member State,
provided that such Union citizen satisfies the conditions referred to in
paragraph 1(a), (b) or (c).
3. For the purposes of paragraph 1(a), a Union citizen who is no
longer a worker or self-employed person shall retain the status of
worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an illness or
accident;
(b) he/she is in duly recorded involuntary unemployment after having
been employed for more than one year and has registered as a
job-seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after
completing a fixed-term employment contract of less than a year
or after having become involuntarily unemployed during the first
twelve months and has registered as a job-seeker with the relevant
employment office. In this case, the status of worker shall be
retained for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is involuntarily
unemployed, the retention of the status of worker shall
require the training to be related to the previous employment.
4. By way of derogation from paragraphs 1(d) and 2 above, only the
spouse, the registered partner provided for in Article 2(2)(b) and
dependent children shall have the right of residence as family
members of a Union citizen meeting the conditions under 1(c) above.
Article 3(2) shall apply to his/her dependent direct relatives in the
ascending lines and those of his/her spouse or registered partner.
Article 8
Administrative formalities for Union citizens
1. Without prejudice to Article 5(5), for periods of residence longer
than three months, the host Member State may require Union citizens to
register with the relevant authorities.
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2. The deadline for registration may not be less than three months
from the date of arrival. A registration certificate shall be issued
immediately, stating the name and address of the person registering
and the date of the registration. Failure to comply with the registration
requirement may render the person concerned liable to proportionate
and non-discriminatory sanctions.
3. For the registration certificate to be issued, Member States may
only require that
— Union citizens to whom point (a) of Article 7(1) applies present a
valid identity card or passport, a confirmation of engagement from
the employer or a certificate of employment, or proof that they are
self-employed persons,
— Union citizens to whom point (b) of Article 7(1) applies present a
valid identity card or passport and provide proof that they satisfy the
conditions laid down therein,
— Union citizens to whom point (c) of Article 7(1) applies present a
valid identity card or passport, provide proof of enrolment at an
accredited establishment and of comprehensive sickness insurance
cover and the declaration or equivalent means referred to in point (c)
of Article 7(1). Member States may not require this declaration to
refer to any specific amount of resources.
4. Member States may not lay down a fixed amount which they
regard as ‘sufficient resources’, but they must take into account the
personal situation of the person concerned. In all cases this amount
shall not be higher than the threshold below which nationals of the
host Member State become eligible for social assistance, or, where
this criterion is not applicable, higher than the minimum social
security pension paid by the host Member State.
5. For the registration certificate to be issued to family members of
Union citizens, who are themselves Union citizens, Member States may
require the following documents to be presented:
(a) a valid identity card or passport;
(b) a document attesting to the existence of a family relationship or of a
registered partnership;
(c) where appropriate, the registration certificate of the Union citizen
whom they are accompanying or joining;
(d) in cases falling under points (c) and (d) of Article 2(2), documentary
evidence that the conditions laid down therein are met;
(e) in cases falling under Article 3(2)(a), a document issued by the
relevant authority in the country of origin or country from which
they are arriving certifying that they are dependants or members of
the household of the Union citizen, or proof of the existence of
serious health grounds which strictly require the personal care of the
family member by the Union citizen;
(f) in cases falling under Article 3(2)(b), proof of the existence of a
durable relationship with the Union citizen.
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Article 9
Administrative formalities for family members who are not
nationals of a Member State
1. Member States shall issue a residence card to family members of a
Union citizen who are not nationals of a Member State, where the
planned period of residence is for more than three months.
2. The deadline for submitting the residence card application may not
be less than three months from the date of arrival.
3. Failure to comply with the requirement to apply for a residence
card may make the person concerned liable to proportionate and
non-discriminatory sanctions.
Article 10
Issue of residence cards
1. The right of residence of family members of a Union citizen who
are not nationals of a Member State shall be evidenced by the issuing of
a document called ‘Residence card of a family member of a Union
citizen’ no later than six months from the date on which they submit
the application. A certificate of application for the residence card shall
be issued immediately.
2. For the residence card to be issued, Member States shall require
presentation of the following documents:
(a) a valid passport;
(b) a document attesting to the existence of a family relationship or of a
registered partnership;
(c) the registration certificate or, in the absence of a registration system,
any other proof of residence in the host Member State of the Union
citizen whom they are accompanying or joining;
(d) in cases falling under points (c) and (d) of Article 2(2), documentary
evidence that the conditions laid down therein are met;
(e) in cases falling under Article 3(2)(a), a document issued by the
relevant authority in the country of origin or country from which
they are arriving certifying that they are dependants or members of
the household of the Union citizen, or proof of the existence of
serious health grounds which strictly require the personal care of the
family member by the Union citizen;
(f) in cases falling under Article 3(2)(b), proof of the existence of a
durable relationship with the Union citizen.
Article 11
Validity of the residence card
1. The residence card provided for by Article 10(1) shall be valid for
five years from the date of issue or for the envisaged period of residence
of the Union citizen, if this period is less than five years.
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2. The validity of the residence card shall not be affected by
temporary absences not exceeding six months a year, or by absences
of a longer duration for compulsory military service or by one absence
of a maximum of 12 consecutive months for important reasons such as
pregnancy and childbirth, serious illness, study or vocational training, or
a posting in another Member State or a third country.
Article 12
Retention of the right of residence by family members in the event
of death or departure of the Union citizen
1. Without prejudice to the second subparagraph, the Union citizen's
death or departure from the host Member State shall not affect the right
of residence of his/her family members who are nationals of a Member
State.
Before acquiring the right of permanent residence, the persons
concerned must meet the conditions laid down in points (a), (b), (c)
or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, the Union citizen's
death shall not entail loss of the right of residence of his/her family
members who are not nationals of a Member State and who have been
residing in the host Member State as family members for at least one
year before the Union citizen's death.
Before acquiring the right of permanent residence, the right of residence
of the persons concerned shall remain subject to the requirement that
they are able to show that they are workers or self-employed persons or
that they have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of
the host Member State during their period of residence and have
comprehensive sickness insurance cover in the host Member State, or
that they are members of the family, already constituted in the host
Member State, of a person satisfying these requirements. ‘Sufficient
resources’ shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on
a personal basis.
3. The Union citizen's departure from the host Member State or
his/her death shall not entail loss of the right of residence of his/her
children or of the parent who has actual custody of the children, irrespective
of nationality, if the children reside in the host Member State
and are enrolled at an educational establishment, for the purpose of
studying there, until the completion of their studies.
Article 13
Retention of the right of residence by family members in the event
of divorce, annulment of marriage or termination of registered
partnership
1. Without prejudice to the second subparagraph, divorce, annulment
of the Union citizen's marriage or termination of his/her registered partnership,
as referred to in point 2(b) of Article 2 shall not affect the right
of residence of his/her family members who are nationals of a Member
State.
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Before acquiring the right of permanent residence, the persons
concerned must meet the conditions laid down in points (a), (b), (c)
or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, divorce, annulment
of marriage or termination of the registered partnership referred to in
point 2(b) of Article 2 shall not entail loss of the right of residence of a
Union citizen's family members who are not nationals of a Member
State where:
(a) prior to initiation of the divorce or annulment proceedings or termination
of the registered partnership referred to in point 2(b) of
Article 2, the marriage or registered partnership has lasted at least
three years, including one year in the host Member State; or
(b) by agreement between the spouses or the partners referred to in
point 2(b) of Article 2 or by court order, the spouse or partner
who is not a national of a Member State has custody of the
Union citizen's children; or
(c) this is warranted by particularly difficult circumstances, such as
having been a victim of domestic violence while the marriage or
registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to in point
2(b) of Article 2 or by court order, the spouse or partner who is not
a national of a Member State has the right of access to a minor
child, provided that the court has ruled that such access must be in
the host Member State, and for as long as is required.
Before acquiring the right of permanent residence, the right of residence
of the persons concerned shall remain subject to the requirement that
they are able to show that they are workers or self-employed persons or
that they have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of
the host Member State during their period of residence and have
comprehensive sickness insurance cover in the host Member State, or
that they are members of the family, already constituted in the host
Member State, of a person satisfying these requirements. 'Sufficient
resources' shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on
personal basis.
Article 14
Retention of the right of residence
1. Union citizens and their family members shall have the right of
residence provided for in Article 6, as long as they do not become an
unreasonable burden on the social assistance system of the host Member
State.
2. Union citizens and their family members shall have the right of
residence provided for in Articles 7, 12 and 13 as long as they meet the
conditions set out therein.
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In specific cases where there is a reasonable doubt as to whether a
Union citizen or his/her family members satisfies the conditions set
out in Articles 7, 12 and 13, Member States may verify if these
conditions are fulfilled. This verification shall not be carried out system­
atically.
3. An expulsion measure shall not be the automatic consequence of a
Union citizen's or his or her family member's recourse to the social
assistance system of the host Member State.
4. By way of derogation from paragraphs 1 and 2 and without
prejudice to the provisions of Chapter VI, an expulsion measure may
in no case be adopted against Union citizens or their family members if:
(a) the Union citizens are workers or self-employed persons, or
(b) the Union citizens entered the territory of the host Member State in
order to seek employment. In this case, the Union citizens and their
family members may not be expelled for as long as the Union
citizens can provide evidence that they are continuing to seek
employment and that they have a genuine chance of being engaged.
Article 15
Procedural safeguards
1. The procedures provided for by Articles 30 and 31 shall apply by
analogy to all decisions restricting free movement of Union citizens and
their family members on grounds other than public policy, public
security or public health.
2. Expiry of the identity card or passport on the basis of which the
person concerned entered the host Member State and was issued with a
registration certificate or residence card shall not constitute a ground for
expulsion from the host Member State.
3. The host Member State may not impose a ban on entry in the
context of an expulsion decision to which paragraph 1 applies.
CHAPTER IV
RIGHT OF PERMANENT RESIDENCE
S e c t i o n I
E l i g i b i l i t y
Article 16
General rule for Union citizens and their family members
1. Union citizens who have resided legally for a continuous period of
five years in the host Member State shall have the right of permanent
residence there. This right shall not be subject to the conditions
provided for in Chapter III.
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2. Paragraph 1 shall apply also to family members who are not
nationals of a Member State and have legally resided with the Union
citizen in the host Member State for a continuous period of five years.
3. Continuity of residence shall not be affected by temporary
absences not exceeding a total of six months a year, or by absences
of a longer duration for compulsory military service, or by one absence
of a maximum of 12 consecutive months for important reasons such as
pregnancy and childbirth, serious illness, study or vocational training, or
a posting in another Member State or a third country.
4. Once acquired, the right of permanent residence shall be lost only
through absence from the host Member State for a period exceeding two
consecutive years.
Article 17
Exemptions for persons no longer working in the host Member
State and their family members
1. By way of derogation from Article 16, the right of permanent
residence in the host Member State shall be enjoyed before completion
of a continuous period of five years of residence by:
(a) workers or self-employed persons who, at the time they stop
working, have reached the age laid down by the law of that
Member State for entitlement to an old age pension or workers
who cease paid employment to take early retirement, provided
that they have been working in that Member State for at least the
preceding twelve months and have resided there continuously for
more than three years.
If the law of the host Member State does not grant the right to an
old age pension to certain categories of self-employed persons, the
age condition shall be deemed to have been met once the person
concerned has reached the age of 60;
(b) workers or self-employed persons who have resided continuously in
the host Member State for more than two years and stop working
there as a result of permanent incapacity to work.
If such incapacity is the result of an accident at work or an occupational
disease entitling the person concerned to a benefit payable
in full or in part by an institution in the host Member State, no
condition shall be imposed as to length of residence;
(c) workers or self-employed persons who, after three years of
continuous employment and residence in the host Member State,
work in an employed or self-employed capacity in another Member
State, while retaining their place of residence in the host Member
State, to which they return, as a rule, each day or at least once a
week.
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For the purposes of entitlement to the rights referred to in points (a)
and (b), periods of employment spent in the Member State in which
the person concerned is working shall be regarded as having been
spent in the host Member State.
Periods of involuntary unemployment duly recorded by the relevant
employment office, periods not worked for reasons not of the person's
own making and absences from work or cessation of work due to illness
or accident shall be regarded as periods of employment.
2. The conditions as to length of residence and employment laid
down in point (a) of paragraph 1 and the condition as to length of
residence laid down in point (b) of paragraph 1 shall not apply if the
worker's or the self-employed person's spouse or partner as referred to
in point 2(b) of Article 2 is a national of the host Member State or has
lost the nationality of that Member State by marriage to that worker or
self-employed person.
3. Irrespective of nationality, the family members of a worker or a
self-employed person who are residing with him in the territory of the
host Member State shall have the right of permanent residence in that
Member State, if the worker or self-employed person has acquired
himself the right of permanent residence in that Member State on the
basis of paragraph 1.
4. If, however, the worker or self-employed person dies while still
working but before acquiring permanent residence status in the host
Member State on the basis of paragraph 1, his family members who
are residing with him in the host Member State shall acquire the right of
permanent residence there, on condition that:
(a) the worker or self-employed person had, at the time of death,
resided continuously on the territory of that Member State for two
years; or
(b) the death resulted from an accident at work or an occupational
disease; or
(c) the surviving spouse lost the nationality of that Member State
following marriage to the worker or self-employed person.
Article 18
Acquisition of the right of permanent residence by certain family
members who are not nationals of a Member State
Without prejudice to Article 17, the family members of a Union citizen
to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid
down therein, shall acquire the right of permanent residence after
residing legally for a period of five consecutive years in the host
Member State.
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S e c t i o n I I
A d m i n i s t r a t i v e f o r m a l i t i e s
Article 19
Document certifying permanent residence for Union citizens
1. Upon application Member States shall issue Union citizens entitled
to permanent residence, after having verified duration of residence, with
a document certifying permanent residence.
2. The document certifying permanent residence shall be issued as
soon as possible.
Article 20
Permanent residence card for family members who are not
nationals of a Member State
1. Member States shall issue family members who are not nationals
of a Member State entitled to permanent residence with a permanent
residence card within six months of the submission of the application.
The permanent residence card shall be renewable automatically every 10
years.
2. The application for a permanent residence card shall be submitted
before the residence card expires. Failure to comply with the
requirement to apply for a permanent residence card may render the
person concerned liable to proportionate and non-discriminatory
sanctions.
3. Interruption in residence not exceeding two consecutive years shall
not affect the validity of the permanent residence card.
Article 21
Continuity of residence
For the purposes of this Directive, continuity of residence may be
attested by any means of proof in use in the host Member State.
Continuity of residence is broken by any expulsion decision duly
enforced against the person concerned.
CHAPTER V
PROVISIONS COMMON TO THE RIGHT OF RESIDENCE AND THE
RIGHT OF PERMANENT RESIDENCE
Article 22
Territorial scope
The right of residence and the right of permanent residence shall cover
the whole territory of the host Member State. Member States may
impose territorial restrictions on the right of residence and the right of
permanent residence only where the same restrictions apply to their own
nationals.
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Article 23
Related rights
Irrespective of nationality, the family members of a Union citizen who
have the right of residence or the right of permanent residence in a
Member State shall be entitled to take up employment or
self-employment there.
Article 24
Equal treatment
1. Subject to such specific provisions as are expressly provided for in
the Treaty and secondary law, all Union citizens residing on the basis of
this Directive in the territory of the host Member State shall enjoy equal
treatment with the nationals of that Member State within the scope of
the Treaty. The benefit of this right shall be extended to family
members who are not nationals of a Member State and who have the
right of residence or permanent residence.
2. By way of derogation from paragraph 1, the host Member State
shall not be obliged to confer entitlement to social assistance during the
first three months of residence or, where appropriate, the longer period
provided for in Article 14(4)(b), nor shall it be obliged, prior to
acquisition of the right of permanent residence, to grant maintenance
aid for studies, including vocational training, consisting in student grants
or student loans to persons other than workers, self-employed persons,
persons who retain such status and members of their families.
Article 25
General provisions concerning residence documents
1. Possession of a registration certificate as referred to in Article 8, of
a document certifying permanent residence, of a certificate attesting
submission of an application for a family member residence card, of
a residence card or of a permanent residence card, may under no
circumstances be made a precondition for the exercise of a right or
the completion of an administrative formality, as entitlement to rights
may be attested by any other means of proof.
2. All documents mentioned in paragraph 1 shall be issued free of
charge or for a charge not exceeding that imposed on nationals for the
issuing of similar documents.
Article 26
Checks
Member States may carry out checks on compliance with any
requirement deriving from their national legislation for non-nationals
always to carry their registration certificate or residence card,
provided that the same requirement applies to their own nationals as
regards their identity card. In the event of failure to comply with this
requirement, Member States may impose the same sanctions as those
imposed on their own nationals for failure to carry their identity card.
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CHAPTER VI
RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF
RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC
SECURITY OR PUBLIC HEALTH
Article 27
General principles
1. Subject to the provisions of this Chapter, Member States may
restrict the freedom of movement and residence of Union citizens and
their family members, irrespective of nationality, on grounds of public
policy, public security or public health. These grounds shall not be
invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security
shall comply with the principle of proportionality and shall be based
exclusively on the personal conduct of the individual concerned.
Previous criminal convictions shall not in themselves constitute
grounds for taking such measures.
The personal conduct of the individual concerned must represent a
genuine, present and sufficiently serious threat affecting one of the
fundamental interests of society. Justifications that are isolated from
the particulars of the case or that rely on considerations of general
prevention shall not be accepted.
3. In order to ascertain whether the person concerned represents a
danger for public policy or public security, when issuing the registration
certificate or, in the absence of a registration system, not later than three
months from the date of arrival of the person concerned on its territory
or from the date of reporting his/her presence within the territory, as
provided for in Article 5(5), or when issuing the residence card, the host
Member State may, should it consider this essential, request the Member
State of origin and, if need be, other Member States to provide
information concerning any previous police record the person
concerned may have. Such enquiries shall not be made as a matter of
routine. The Member State consulted shall give its reply within two
months.
4. The Member State which issued the passport or identity card shall
allow the holder of the document who has been expelled on grounds of
public policy, public security, or public health from another Member
State to re-enter its territory without any formality even if the document
is no longer valid or the nationality of the holder is in dispute.
Article 28
Protection against expulsion
1. Before taking an expulsion decision on grounds of public policy
or public security, the host Member State shall take account of
considerations such as how long the individual concerned has resided
on its territory, his/her age, state of health, family and economic
situation, social and cultural integration into the host Member State
and the extent of his/her links with the country of origin.
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2. The host Member State may not take an expulsion decision against
Union citizens or their family members, irrespective of nationality, who
have the right of permanent residence on its territory, except on serious
grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens,
except if the decision is based on imperative grounds of public security,
as defined by Member States, if they:
(a) have resided in the host Member State for the previous 10 years; or
(b) are a minor, except if the expulsion is necessary for the best
interests of the child, as provided for in the United Nations
Convention on the Rights of the Child of 20 November 1989.
Article 29
Public health
1. The only diseases justifying measures restricting freedom of
movement shall be the diseases with epidemic potential as defined by
the relevant instruments of the World Health Organisation and other
infectious diseases or contagious parasitic diseases if they are the
subject of protection provisions applying to nationals of the host
Member State.
2. Diseases occurring after a three-month period from the date of
arrival shall not constitute grounds for expulsion from the territory.
3. Where there are serious indications that it is necessary, Member
States may, within three months of the date of arrival, require persons
entitled to the right of residence to undergo, free of charge, a medical
examination to certify that they are not suffering from any of the
conditions referred to in paragraph 1. Such medical examinations may
not be required as a matter of routine.
Article 30
Notification of decisions
1. The persons concerned shall be notified in writing of any decision
taken under Article 27(1), in such a way that they are able to
comprehend its content and the implications for them.
2. The persons concerned shall be informed, precisely and in full, of
the public policy, public security or public health grounds on which the
decision taken in their case is based, unless this is contrary to the
interests of State security.
3. The notification shall specify the court or administrative authority
with which the person concerned may lodge an appeal, the time limit
for the appeal and, where applicable, the time allowed for the person to
leave the territory of the Member State. Save in duly substantiated cases
of urgency, the time allowed to leave the territory shall be not less than
one month from the date of notification.
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Article 31
Procedural safeguards
1. The persons concerned shall have access to judicial and, where
appropriate, administrative redress procedures in the host Member State
to appeal against or seek review of any decision taken against them on
the grounds of public policy, public security or public health.
2. Where the application for appeal against or judicial review of the
expulsion decision is accompanied by an application for an interim
order to suspend enforcement of that decision, actual removal from
the territory may not take place until such time as the decision on the
interim order has been taken, except:
— where the expulsion decision is based on a previous judicial
decision; or
— where the persons concerned have had previous access to judicial
review; or
— where the expulsion decision is based on imperative grounds of
public security under Article 28(3).
3. The redress procedures shall allow for an examination of the
legality of the decision, as well as of the facts and circumstances on
which the proposed measure is based. They shall ensure that the
decision is not disproportionate, particularly in view of the requirements
laid down in Article 28.
4. Member States may exclude the individual concerned from their
territory pending the redress procedure, but they may not prevent the
individual from submitting his/her defence in person, except when
his/her appearance may cause serious troubles to public policy or
public security or when the appeal or judicial review concerns a
denial of entry to the territory.
Article 32
Duration of exclusion orders
1. Persons excluded on grounds of public policy or public security
may submit an application for lifting of the exclusion order after a
reasonable period, depending on the circumstances, and in any event
after three years from enforcement of the final exclusion order which
has been validly adopted in accordance with Community law, by putting
forward arguments to establish that there has been a material change in
the circumstances which justified the decision ordering their exclusion.
The Member State concerned shall reach a decision on this application
within six months of its submission.
2. The persons referred to in paragraph 1 shall have no right of entry
to the territory of the Member State concerned while their application is
being considered.
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Article 33
Expulsion as a penalty or legal consequence
1. Expulsion orders may not be issued by the host Member State as a
penalty or legal consequence of a custodial penalty, unless they conform
to the requirements of Articles 27, 28 and 29.
2. If an expulsion order, as provided for in paragraph 1, is enforced
more than two years after it was issued, the Member State shall check
that the individual concerned is currently and genuinely a threat to
public policy or public security and shall assess whether there has
been any material change in the circumstances since the expulsion
order was issued.
CHAPTER VII
FINAL PROVISIONS
Article 34
Publicity
Member States shall disseminate information concerning the rights and
obligations of Union citizens and their family members on the subjects
covered by this Directive, particularly by means of awareness-raising
campaigns conducted through national and local media and other means
of communication.
Article 35
Abuse of rights
Member States may adopt the necessary measures to refuse, terminate
or withdraw any right conferred by this Directive in the case of abuse of
rights or fraud, such as marriages of convenience. Any such measure
shall be proportionate and subject to the procedural safeguards provided
for in Articles 30 and 31.
Article 36
Sanctions
Member States shall lay down provisions on the sanctions applicable to
breaches of national rules adopted for the implementation of this
Directive and shall take the measures required for their application.
The sanctions laid down shall be effective and proportionate. Member
States shall notify the Commission of these provisions not later than
30 April 2006 and as promptly as possible in the case of any subsequent
changes.
Article 37
More favourable national provisions
The provisions of this Directive shall not affect any laws, regulations or
administrative provisions laid down by a Member State which would be
more favourable to the persons covered by this Directive.
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Article 38
Repeals
▼M1
__________
▼C1
2. Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
shall be repealed with effect from 30 April 2006.
3. References made to the repealed provisions and Directives shall be
construed as being made to this Directive.
Article 39
Report
►C3 No later than 30 April 2008 ◄ the Commission shall submit a
report on the application of this Directive to the European Parliament
and the Council, together with any necessary proposals, notably on the
opportunity to extend the period of time during which Union citizens
and their family members may reside in the territory of the host
Member State without any conditions. The Member States shall
provide the Commission with the information needed to produce the
report.
Article 40
Transposition
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive by
30 April 2006.
When Member States adopt those measures, they shall contain a
reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The methods of
making such reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the text of
the provisions of national law which they adopt in the field covered by
this Directive together with a table showing how the provisions of this
Directive correspond to the national provisions adopted.
Article 41
Entry into force
This Directive shall enter into force on the day of its publication in the
Official Journal of the European Union.
Article 42
Addressees
This Directive is addressed to the Member States.
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I
(Legislative acts)
REGULATIONS
REGULATION (EU) No 492/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 5 April 2011
on freedom of movement for workers within the Union
(codification)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 46 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national
parliaments,
Having regard to the opinion of the European Economic and
Social Committee (1),
Acting in accordance with the ordinary legislative procedure (2),
Whereas:
(1) Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for
workers within the Community (3) has been substantially
amended several times (4). In the interests of clarity and
rationality the said Regulation should be codified.
(2) Freedom of movement for workers should be secured
within the Union. The attainment of this objective
entails the abolition of any discrimination based on
nationality between workers of the Member States as
regards employment, remuneration and other conditions
of work and employment, as well as the right of such
workers to move freely within the Union in order to
pursue activities as employed persons subject to any
limitations justified on grounds of public policy, public
security or public health.
(3) Provisions should be laid down to enable the objectives
laid down in Articles 45 and 46 of the Treaty on the
Functioning of the European Union in the field of
freedom of movement to be achieved.
(4) Freedom of movement constitutes a fundamental right of
workers and their families. Mobility of labour within the
Union must be one of the means by which workers are
guaranteed the possibility of improving their living and
working conditions and promoting their social
advancement, while helping to satisfy the requirements
of the economies of the Member States. The right of all
workers in the Member States to pursue the activity of
their choice within the Union should be affirmed.
(5) Such right should be enjoyed without discrimination by
permanent, seasonal and frontier workers and by those
who pursue their activities for the purpose of providing
services.
(6) The right of freedom of movement, in order that it may
be exercised, by objective standards, in freedom and
dignity, requires that equality of treatment be ensured
in fact and in law in respect of all matters relating to
the actual pursuit of activities as employed persons and
to eligibility for housing, and also that obstacles to the
mobility of workers be eliminated, in particular as
regards the conditions for the integration of the
worker’s family into the host country.
EN27.5.2011 Official Journal of the European Union L 141/1
(1) OJ C 44, 11.2.2011, p. 170.
(2) Position of the European Parliament of 7 September 2010 (not yet
published in the Official Journal) and decision of the Council of
21 March 2011.
(3) OJ L 257, 19.10.1968, p. 2.
(4) See Annex I.
(7) The principle of non-discrimination between workers in
the Union means that all nationals of Member States
have the same priority as regards employment as is
enjoyed by national workers.
(8) The machinery for vacancy clearance, in particular by
means of direct cooperation between the central
employment services and also between the regional
services, as well as by coordination of the exchange of
information, ensures in a general way a clearer picture of
the labour market. Workers wishing to move should also
be regularly informed of living and working conditions.
(9) Close links exist between freedom of movement for
workers, employment and vocational training,
particularly where the latter aims at putting workers in
a position to take up concrete offers of employment
from other regions of the Union. Such links make it
necessary that the problems arising in this connection
should no longer be studied in isolation but viewed as
interdependent, account also being taken of the problems
of employment at the regional level. It is therefore
necessary to direct the efforts of Member States toward
coordinating their employment policies,
HAVE ADOPTED THIS REGULATION:
CHAPTER I
EMPLOYMENT, EQUAL TREATMENT AND WORKERS’
FAMILIES
SECTION 1
Eligibility for employment
Article 1
1. Any national of a Member State shall, irrespective of his
place of residence, have the right to take up an activity as an
employed person, and to pursue such activity, within the
territory of another Member State in accordance with the
provisions laid down by law, regulation or administrative
action governing the employment of nationals of that State.
2. He shall, in particular, have the right to take up available
employment in the territory of another Member State with the
same priority as nationals of that State.
Article 2
Any national of a Member State and any employer pursuing an
activity in the territory of a Member State may exchange their
applications for and offers of employment, and may conclude
and perform contracts of employment in accordance with the
provisions in force laid down by law, regulation or administrative
action, without any discrimination resulting therefrom.
Article 3
1. Under this Regulation, provisions laid down by law, regulation
or administrative action or administrative practices of a
Member State shall not apply:
(a) where they limit application for and offers of employment,
or the right of foreign nationals to take up and pursue
employment or subject these to conditions not applicable
in respect of their own nationals; or
(b) where, though applicable irrespective of nationality, their
exclusive or principal aim or effect is to keep nationals of
other Member States away from the employment offered.
The first subparagraph shall not apply to conditions relating to
linguistic knowledge required by reason of the nature of the
post to be filled.
2. There shall be included in particular among the provisions
or practices of a Member State referred to in the first
subparagraph of paragraph 1 those which:
(a) prescribe a special recruitment procedure for foreign
nationals;
(b) limit or restrict the advertising of vacancies in the press or
through any other medium or subject it to conditions other
than those applicable in respect of employers pursuing their
activities in the territory of that Member State;
(c) subject eligibility for employment to conditions of registration
with employment offices or impede recruitment of
individual workers, where persons who do not reside in the
territory of that State are concerned.
Article 4
1. Provisions laid down by law, regulation or administrative
action of the Member States which restrict by number or
percentage the employment of foreign nationals in any undertaking,
branch of activity or region, or at a national level, shall
not apply to nationals of the other Member States.
2. When in a Member State the granting of any benefit to
undertakings is subject to a minimum percentage of national
workers being employed, nationals of the other Member States
shall be counted as national workers, subject to Directive
2005/36/EC of the European Parliament and of the Council
of 7 September 2005 on the recognition of professional qualifications
(1).
ENL 141/2 Official Journal of the European Union 27.5.2011
(1) OJ L 255, 30.9.2005, p. 22.
Article 5
A national of a Member State who seeks employment in the
territory of another Member State shall receive the same
assistance there as that afforded by the employment offices in
that State to their own nationals seeking employment.
Article 6
1. The engagement and recruitment of a national of one
Member State for a post in another Member State shall not
depend on medical, vocational or other criteria which are
discriminatory on grounds of nationality by comparison with
those applied to nationals of the other Member State who wish
to pursue the same activity.
2. A national who holds an offer in his name from an
employer in a Member State other than that of which he is a
national may have to undergo a vocational test, if the employer
expressly requests this when making his offer of employment.
SECTION 2
Employment and equality of treatment
Article 7
1. A worker who is a national of a Member State may not,
in the territory of another Member State, be treated differently
from national workers by reason of his nationality in respect of
any conditions of employment and work, in particular as
regards remuneration, dismissal, and, should he become unemployed,
reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as
national workers.
3. He shall also, by virtue of the same right and under the
same conditions as national workers, have access to training in
vocational schools and retraining centres.
4. Any clause of a collective or individual agreement or of
any other collective regulation concerning eligibility for
employment, remuneration and other conditions of work or
dismissal shall be null and void in so far as it lays down or
authorises discriminatory conditions in respect of workers who
are nationals of the other Member States.
Article 8
A worker who is a national of a Member State and who is
employed in the territory of another Member State shall enjoy
equality of treatment as regards membership of trade unions
and the exercise of rights attaching thereto, including the right
to vote and to be eligible for the administration or management
posts of a trade union. He may be excluded from taking part in
the management of bodies governed by public law and from
holding an office governed by public law. Furthermore, he shall
have the right of eligibility for workers’ representative bodies in
the undertaking.
The first paragraph of this Article shall not affect laws or regulations
in certain Member States which grant more extensive
rights to workers coming from the other Member States.
Article 9
1. A worker who is a national of a Member State and who is
employed in the territory of another Member State shall enjoy
all the rights and benefits accorded to national workers in
matters of housing, including ownership of the housing he
needs.
2. A worker referred to in paragraph 1 may, with the same
right as nationals, put his name down on the housing lists in
the region in which he is employed, where such lists exist, and
shall enjoy the resultant benefits and priorities.
If his family has remained in the country whence he came, they
shall be considered for this purpose as residing in the said
region, where national workers benefit from a similar
presumption.
SECTION 3
Workers’ families
Article 10
The children of a national of a Member State who is or has
been employed in the territory of another Member State shall be
admitted to that State’s general educational, apprenticeship and
vocational training courses under the same conditions as the
nationals of that State, if such children are residing in its
territory.
Member States shall encourage all efforts to enable such
children to attend these courses under the best possible
conditions.
CHAPTER II
CLEARANCE OF VACANCIES AND APPLICATIONS FOR
EMPLOYMENT
SECTION 1
Cooperation between the Member States and with the
Commission
Article 11
1. The Member States or the Commission shall instigate or
together undertake any study of employment or unemployment
which they consider necessary for freedom of movement for
workers within the Union.
The central employment services of the Member States shall
cooperate closely with each other and with the Commission
with a view to acting jointly as regards the clearing of
vacancies and applications for employment within the Union
and the resultant placing of workers in employment.
EN27.5.2011 Official Journal of the European Union L 141/3
2. To this end the Member States shall designate specialist
services which shall be entrusted with organising work in the
fields referred to in the second subparagraph of paragraph 1
and cooperating with each other and with the departments of
the Commission.
The Member States shall notify the Commission of any change
in the designation of such services and the Commission shall
publish details thereof for information in the Official Journal of
the European Union.
Article 12
1. The Member States shall send to the Commission
information on problems arising in connection with the
freedom of movement and employment of workers and
particulars of the state and development of employment.
2. The Commission, taking the utmost account of the
opinion of the Technical Committee referred to in Article 29
(‘the Technical Committee’), shall determine the manner in
which the information referred to in paragraph 1 of this
Article is to be drawn up.
3. In accordance with the procedure laid down by the
Commission taking the utmost account of the opinion of the
Technical Committee, the specialist service of each Member
State shall send to the specialist services of the other Member
States and to the European Coordination Office referred to in
Article 18 such information concerning living and working
conditions and the state of the labour market as is likely to
be of guidance to workers from the other Member States. Such
information shall be brought up to date regularly.
The specialist services of the other Member States shall ensure
that wide publicity is given to such information, in particular by
circulating it among the appropriate employment services and
by all suitable means of communication for informing the
workers concerned.
SECTION 2
Machinery for vacancy clearance
Article 13
1. The specialist service of each Member State shall regularly
send to the specialist services of the other Member States and to
the European Coordination Office referred to in Article 18:
(a) details of vacancies which could be filled by nationals of
other Member States;
(b) details of vacancies addressed to third countries;
(c) details of applications for employment by those who have
formally expressed a wish to work in another Member State;
(d) information, by region and by branch of activity, on
applicants who have declared themselves actually willing
to accept employment in another country.
The specialist service of each Member State shall forward this
information to the appropriate employment services and
agencies as soon as possible.
2. The details of vacancies and applications referred to in
paragraph 1 shall be circulated according to a uniform system
to be established by the European Coordination Office referred
to in Article 18 in collaboration with the Technical Committee.
This system may be adapted if necessary.
Article 14
1. Any vacancy within the meaning of Article 13
communicated to the employment services of a Member State
shall be notified to and processed by the competent
employment services of the other Member States concerned.
Such services shall forward to the services of the first Member
State the details of suitable applications.
2. The applications for employment referred to in point (c)
of the first subparagraph of Article 13(1) shall be responded to
by the relevant services of the Member States within a
reasonable period, not exceeding 1 month.
3. The employment services shall grant workers who are
nationals of the Member States the same priority as the
relevant measures grant to nationals vis-à-vis workers from
third countries.
Article 15
1. The provisions of Article 14 shall be implemented by the
specialist services. However, in so far as they have been authorised
by the central services and in so far as the organisation
of the employment services of a Member State and the placing
techniques employed make it possible:
(a) the regional employment services of the Member States
shall:
(i) on the basis of the information referred to in Article 13,
on which appropriate action will be taken, directly bring
together and clear vacancies and applications for
employment;
ENL 141/4 Official Journal of the European Union 27.5.2011
(ii) establish direct relations for clearance:
— of vacancies offered to a named worker,
— of individual applications for employment sent
either to a specific employment service or to an
employer pursuing his activity within the area
covered by such a service,
— where the clearing operations concern seasonal
workers who must be recruited as quickly as
possible;
(b) the services territorially responsible for the border regions of
two or more Member States shall regularly exchange data
relating to vacancies and applications for employment in
their area and, acting in accordance with their arrangements
with the other employment services of their countries, shall
directly bring together and clear vacancies and applications
for employment.
If necessary, the services territorially responsible for border
regions shall also set up cooperation and service structures
to provide:
— users with as much practical information as possible on
the various aspects of mobility, and
— management and labour, social services (in particular
public, private or those of public interest) and all institutions
concerned, with a framework of coordinated
measures relating to mobility,
(c) official employment services which specialise in certain
occupations or specific categories of persons shall
cooperate directly with each other.
2. The Member States concerned shall forward to the
Commission the list, drawn up by common accord, of
services referred to in paragraph 1 and the Commission shall
publish such list for information, and any amendment thereto,
in the Official Journal of the European Union.
Article 16
Adoption of recruiting procedures as applied by the implementing
bodies provided for under agreements concluded
between two or more Member States shall not be obligatory.
SECTION 3
Measures for controlling the balance of the labour market
Article 17
1. On the basis of a report from the Commission drawn up
from information supplied by the Member States, the latter and
the Commission shall at least once a year analyse jointly the
results of Union arrangements regarding vacancies and appli­
cations.
2. The Member States shall examine with the Commission all
the possibilities of giving priority to nationals of Member States
when filling employment vacancies in order to achieve a
balance between vacancies and applications for employment
within the Union. They shall adopt all measures necessary for
this purpose.
3. Every 2 years the Commission shall submit a report to the
European Parliament, the Council and the European Economic
and Social Committee on the implementation of Chapter II,
summarising the information required and the data obtained
from the studies and research carried out and highlighting
any useful points with regard to developments on the Union’s
labour market.
SECTION 4
European Coordination Office
Article 18
The European Office for Coordinating the Clearance of
Vacancies and Applications for Employment (‘the European
Coordination Office’), established within the Commission, shall
have the general task of promoting vacancy clearance at Union
level. It shall be responsible in particular for all the technical
duties in this field which, under the provisions of this Regulation,
are assigned to the Commission, and especially for
assisting the national employment services.
It shall summarise the information referred to in Articles 12
and 13 and the data arising out of the studies and research
carried out pursuant to Article 11, so as to bring to light any
useful facts about foreseeable developments on the Union
labour market; such facts shall be communicated to the
specialist services of the Member States and to the Advisory
Committee referred to in Article 21 and the Technical
Committee.
Article 19
1. The European Coordination Office shall be responsible, in
particular, for:
(a) coordinating the practical measures necessary for vacancy
clearance at Union level and for analysing the resulting
movements of workers;
(b) contributing to such objectives by implementing, in cooperation
with the Technical Committee, joint methods of
action at administrative and technical levels;
EN27.5.2011 Official Journal of the European Union L 141/5
(c) carrying out, where a special need arises, and in agreement
with the specialist services, the bringing together of
vacancies and applications for employment for clearance
by those specialist services.
2. It shall communicate to the specialist services vacancies
and applications for employment sent directly to the
Commission, and shall be informed of the action taken thereon.
Article 20
The Commission may, in agreement with the competent
authority of each Member State, and in accordance with the
conditions and procedures which it shall determine on the
basis of the opinion of the Technical Committee, organise
visits and assignments for officials of other Member States,
and also advanced programmes for specialist personnel.
CHAPTER III
COMMITTEES FOR ENSURING CLOSE COOPERATION
BETWEEN THE MEMBER STATES IN MATTERS CONCERNING
THE FREEDOM OF MOVEMENT OF WORKERS AND THEIR
EMPLOYMENT
SECTION 1
The Advisory Committee
Article 21
The Advisory Committee shall be responsible for assisting the
Commission in the examination of any questions arising from
the application of the Treaty on the Functioning of the
European Union and measures taken in pursuance thereof, in
matters concerning the freedom of movement of workers and
their employment.
Article 22
The Advisory Committee shall be responsible in particular for:
(a) examining problems concerning freedom of movement and
employment within the framework of national manpower
policies, with a view to coordinating the employment
policies of the Member States at Union level, thus
contributing to the development of the economies and to
an improved balance of the labour market;
(b) making a general study of the effects of implementing this
Regulation and any supplementary measures;
(c) submitting to the Commission any reasoned proposals for
revising this Regulation;
(d) delivering, either at the request of the Commission or on its
own initiative, reasoned opinions on general questions or
on questions of principle, in particular on exchange of
information concerning developments in the labour
market, on the movement of workers between Member
States, on programmes or measures to develop vocational
guidance and vocational training which are likely to increase
the possibilities of freedom of movement and employment,
and on all forms of assistance to workers and their families,
including social assistance and the housing of workers.
Article 23
1. The Advisory Committee shall be composed of six
members for each Member State, two of whom shall
represent the Government, two the trade unions and two the
employers’ associations.
2. For each of the categories referred to in paragraph 1, one
alternate member shall be appointed by each Member State.
3. The term of office of the members and their alternates
shall be 2 years. Their appointments shall be renewable.
On expiry of their term of office, the members and their
alternates shall remain in office until replaced or until their
appointments are renewed.
Article 24
The members of the Advisory Committee and their alternates
shall be appointed by the Council, which shall endeavour, when
selecting representatives of trade unions and employers’
associations, to achieve adequate representation on the
Committee of the various economic sectors concerned.
The list of members and their alternates shall be published by
the Council for information in the Official Journal of the European
Union.
Article 25
The Advisory Committee shall be chaired by a member of the
Commission or his representative. The Chairman shall not vote.
The Committee shall meet at least twice a year. It shall be
convened by its Chairman, either on his own initiative, or at
the request of at least one third of the members.
Secretarial services shall be provided for the Committee by the
Commission.
Article 26
The Chairman may invite individuals or representatives of
bodies with wide experience in the field of employment or
movement of workers to take part in meetings as observers
or as experts. The Chairman may be assisted by expert advisers.
ENL 141/6 Official Journal of the European Union 27.5.2011
Article 27
1. An opinion delivered by the Advisory Committee shall
not be valid unless two thirds of the members are present.
2. Opinions shall state the reasons on which they are based;
they shall be delivered by an absolute majority of the votes
validly cast; they shall be accompanied by a written statement
of the views expressed by the minority, when the latter so
requests.
Article 28
The Advisory Committee shall establish its working methods by
rules of procedure which shall enter into force after the Council,
having received an opinion from the Commission, has given its
approval. The entry into force of any amendment that the
Committee decides to make thereto shall be subject to the
same procedure.
SECTION 2
The Technical Committee
Article 29
The Technical Committee shall be responsible for assisting the
Commission in the preparation, promotion and follow-up of all
technical work and measures for giving effect to this Regulation
and any supplementary measures.
Article 30
The Technical Committee shall be responsible in particular for:
(a) promoting and advancing cooperation between the public
authorities concerned in the Member States on all technical
questions relating to freedom of movement of workers and
their employment;
(b) formulating procedures for the organisation of the joint
activities of the public authorities concerned;
(c) facilitating the gathering of information likely to be of use
to the Commission and the undertaking of the studies and
research provided for in this Regulation, and encouraging
exchange of information and experience between the
administrative bodies concerned;
(d) investigating at a technical level the harmonisation of the
criteria by which Member States assess the state of their
labour markets.
Article 31
1. The Technical Committee shall be composed of representatives
of the Governments of the Member States. Each
Government shall appoint as member of the Technical
Committee one of the members who represent it on the
Advisory Committee.
2. Each Government shall appoint an alternate from among
its other representatives — members or alternates — on the
Advisory Committee.
Article 32
The Technical Committee shall be chaired by a member of the
Commission or his representative. The Chairman shall not vote.
The Chairman and the members of the Committee may be
assisted by expert advisers.
Secretarial services shall be provided for the Committee by the
Commission.
Article 33
The proposals and opinions formulated by the Technical
Committee shall be submitted to the Commission, and the
Advisory Committee shall be informed thereof. Any such
proposals and opinions shall be accompanied by a written
statement of the views expressed by the various members of
the Technical Committee, when the latter so request.
Article 34
The Technical Committee shall establish its working methods
by rules of procedure which shall enter into force after the
Council, having received an opinion from the Commission,
has given its approval. The entry into force of any
amendment which the Committee decides to make thereto
shall be subject to the same procedure.
CHAPTER IV
FINAL PROVISIONS
Article 35
The rules of procedure of the Advisory Committee and of the
Technical Committee in force on 8 November 1968 shall
continue to apply.
Article 36
1. This Regulation shall not affect the provisions of the
Treaty establishing the European Atomic Energy Community
which deal with eligibility for skilled employment in the field
of nuclear energy, nor any measures taken in pursuance of that
Treaty.
Nevertheless, this Regulation shall apply to the category of
workers referred to in the first subparagraph and to members
of their families in so far as their legal position is not governed
by the above-mentioned Treaty or measures.
2. This Regulation shall not affect measures taken in
accordance with Article 48 of the Treaty on the Functioning
of the European Union.
EN27.5.2011 Official Journal of the European Union L 141/7
3. This Regulation shall not affect the obligations of Member
States arising out of special relations or future agreements with
certain non-European countries or territories, based on institutional
ties existing on 8 November 1968, or agreements in
existence on 8 November 1968 with certain non-European
countries or territories, based on institutional ties between them.
Workers from such countries or territories who, in accordance
with this provision, are pursuing activities as employed persons
in the territory of one of those Member States may not invoke
the benefit of the provisions of this Regulation in the territory
of the other Member States.
Article 37
Member States shall, for information purposes, communicate to
the Commission the texts of agreements, conventions or
arrangements concluded between them in the manpower field
between the date of their being signed and that of their entry
into force.
Article 38
The Commission shall adopt measures pursuant to this Regulation
for its implementation. To this end it shall act in close
cooperation with the central public authorities of the Member
States.
Article 39
The administrative expenditure of the Advisory Committee and
of the Technical Committee shall be included in the general
budget of the European Union in the section relating to the
Commission.
Article 40
This Regulation shall apply to the Member States and to their
nationals, without prejudice to Articles 2 and 3.
Article 41
Regulation (EEC) No 1612/68 is hereby repealed.
References to the repealed Regulation shall be construed as
references to this Regulation and shall be read in accordance
with the correlation table in Annex II.
Article 42
This Regulation shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 5 April 2011.
For the European Parliament
The President
J. BUZEK
For the Council
The President
GYŐRI E.
ENL 141/8 Official Journal of the European Union 27.5.2011
ANNEX I
REPEALED REGULATION WITH LIST OF ITS SUCCESSIVE AMENDMENTS
Council Regulation (EEC) No 1612/68
(OJ L 257, 19.10.1968, p. 2)
Council Regulation (EEC) No 312/76
(OJ L 39, 14.2.1976, p. 2)
Council Regulation (EEC) No 2434/92
(OJ L 245, 26.8.1992, p. 1)
Directive 2004/38/EC of the European Parliament and of the Council
(OJ L 158, 30.4.2004, p. 77)
Only Article 38(1)
EN27.5.2011 Official Journal of the European Union L 141/9
ANNEX II
Correlation Table
Regulation (EEC) No 1612/68 This Regulation
Part I Chapter I
Title I Section 1
Article 1 Article 1
Article 2 Article 2
Article 3(1), first subparagraph Article 3(1), first subparagraph
Article 3(1), first subparagraph, first indent Article 3(1), first subparagraph, point (a)
Article 3(1), first subparagraph, second indent Article 3(1), first subparagraph, point (b)
Article 3(1), second subparagraph Article 3(1), second subparagraph
Article 3(2) Article 3(2)
Article 4 Article 4
Article 5 Article 5
Article 6 Article 6
Title II Section 2
Article 7 Article 7
Article 8(1) Article 8
Article 9 Article 9
Title III Section 3
Article 12 Article 10
Part II Chapter II
Title I Section 1
Article 13 Article 11
Article 14 Article 12
Title II Section 2
Article 15 Article 13
Article 16 Article 14
Article 17 Article 15
Article 18 Article 16
Title III Section 3
ENL 141/10 Official Journal of the European Union 27.5.2011
Regulation (EEC) No 1612/68 This Regulation
Article 19 Article 17
Title IV Section 4
Article 21 Article 18
Article 22 Article 19
Article 23 Article 20
Part III Chapter III
Title I Section 1
Article 24 Article 21
Article 25 Article 22
Article 26 Article 23
Article 27 Article 24
Article 28 Article 25
Article 29 Article 26
Article 30 Article 27
Article 31 Article 28
Title II Section 2
Article 32 Article 29
Article 33 Article 30
Article 34 Article 31
Article 35 Article 32
Article 36 Article 33
Article 37 Article 34
Part IV Chapter IV
Title I —
Article 38 —
Article 39 Article 35
Article 40 —
Article 41 —
Title II —
Article 42(1) Article 36(1)
EN27.5.2011 Official Journal of the European Union L 141/11
Regulation (EEC) No 1612/68 This Regulation
Article 42(2) Article 36(2)
Article 42(3), first subparagraph, first and second indents Article 36(3), first subparagraph
Article 42(3), second subparagraph Article 36(3), second subparagraph
Article 43 Article 37
Article 44 Article 38
Article 45 —
Article 46 Article 39
Article 47 Article 40
— Article 41
Article 48 Article 42
— Annex I
— Annex II
ENL 141/12 Official Journal of the European Union 27.5.2011
Volume I - 32
III. Voluntary Migration
A. Entry into the EU
1. Council Regulation (EC) No 539/2001 of 15 March 2001 listing
the third countries whose nationals must be in possession of visas
when crossing the external borders and those whose nationals
are exempt from that requirement
2. Regulation (EC) No 810/2009 of the European Parliament and of
the Council of 13 July 2009 establishing a Community Code on
Visas (Visa Code)
3. Regulation (EC) No 562/2006 of the European Parliament and of
the Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders
(Schengen Borders Code)
4. Council Regulation (EC) No 2007/2004 of 26 October 2004
establishing a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States
of the European Union
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC) No 539/2001
of 15 March 2001
listing the third countries whose nationals must be in possession of visas when crossing the external
borders and those whose nationals are exempt from that requirement
(OJ L 81, 21.3.2001, p. 1)
Amended by:
Official Journal
No page date
►M1 Council Regulation (EC) No 2414/2001 of 7 December 2001 L 327 1 12.12.2001
►M2 Council Regulation (EC) No 453/2003 of 6 March 2003 L 69 10 13.3.2003
►M3 Council Regulation (EC) No 851/2005 of 2 June 2005 L 141 3 4.6.2005
►M4 Council Regulation (EC) No 1791/2006 of 20 November 2006 L 363 1 20.12.2006
►M5 Council Regulation (EC) No 1932/2006 of 21 December 2006 L 405 23 30.12.2006
►M6 Council Regulation (EC) No 1244/2009 of 30 November 2009 L 336 1 18.12.2009
►M7 Regulation (EU) No 1091/2010 of the European Parliament and of the
Council of 24 November 2010
L 329 1 14.12.2010
►M8 Regulation (EU) No 1211/2010 of the European Parliament and of the
Council of 15 December 2010
L 339 6 22.12.2010
Amended by:
►A1 Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,
the Republic of Lithuania, the Republic of Hungary, the Republic of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European
Union is founded
L 236 33 23.9.2003
Corrected by:
►C1 Corrigendum, OJ L 29, 3.2.2007, p. 10 (1932/2006)
2001R0539 — EN — 11.01.2011 — 007.001 — 1
COUNCIL REGULATION (EC) No 539/2001
of 15 March 2001
listing the third countries whose nationals must be in possession of
visas when crossing the external borders and those whose nationals
are exempt from that requirement
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 62, point (2)(b)(i) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas:
(1) Under Article 62, point (2)(b) of the Treaty, the Council is to
adopt rules relating to visas for intended stays of no more than
three months, and in that context it is required to determine the
list of those third countries whose nationals must be in possession
of visas when crossing the external borders and those whose
nationals are exempt from that requirement. Article 61 cites
those lists among the flanking measures which are directly
linked to the free movement of persons in an area of freedom,
security and justice.
(2) This Regulation follows on from the Schengen acquis in
accordance with the Protocol integrating it into the framework
of the European Union, hereinafter referred to as the ‘Schengen
Protocol’. It does not affect Member States' obligations deriving
from the acquis as defined in Annex A to Decision 1999/435/EC
of 20 May 1999 concerning the definition of the Schengen acquis
for the purpose of determining, in conformity with the relevant
provisions of the Treaty establishing the European Community
and the Treaty on European Union, the legal basis for each of the
provisions or decisions which constitute the acquis (3).
(3) This Regulation constitutes the further development of those
provisions in respect of which closer cooperation has been authorised
under the Schengen Protocol and falls within the area
referred to in Article 1, point B, of Decision 1999/437/EC of
17 May 1999 on certain arrangements for the application 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 (4).
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 2
(1) OJ C 177 E, 27.6.2000, p. 66.
(2) Opinion of 5 July 2000 (not yet published in the Official Journal).
(3) OJ L 176, 10.7.1999, p. 1.
(4) OJ L 176, 10.7.1999, p. 31.
(4) Pursuant to Article 1 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
and the United Kingdom are not participating in the adoption of
this Regulation. Consequently and without prejudice to Article 4
of the aforementioned Protocol, the provisions of this Regulation
apply neither to Ireland nor to the United Kingdom.
(5) The determination of those third countries whose nationals are
subject to the visa requirement, and those exempt from it, is
governed by a considered, case-by-case assessment of a variety
of criteria relating inter alia to illegal immigration, public policy
and security, and to the European Union's external relations with
third countries, consideration also being given to the implications
of regional coherence and reciprocity. Provision should be made
for a Community mechanism enabling this principle of reciprocity
to be implemented if one of the third countries included
in Annex II to this Regulation decides to make the nationals of
one or more Member States subject to the visa obligation.
(6) As the Agreement on the European Economic Area exempts
nationals of Iceland, Liechtenstein and Norway from the visa
requirement, these countries are not included in the list in
Annex II hereto.
(7) As regards stateless persons and recognised refugees, without
prejudice to obligations under international agreements signed
by the Member States and in particular the European
Agreement on the Abolition of Visas for Refugees, signed at
Strasbourg on 20 April 1959, the decision as to the visa
requirement or exemption should be based on the third country
in which these persons reside and which issued their travel
documents. However, given the differences in the national legislation
applicable to stateless persons and to recognised refugees,
Member States may decide whether these categories of persons
shall be subject to the visa requirement, where the third country
in which these persons reside and which issued their travel
documents is a third country whose nationals are exempt from
the visa requirement.
(8) In specific cases where special visa rules are warranted, Member
States may exempt certain categories of persons from the visa
requirement or impose it on them in accordance with public
international law or custom.
(9) With a view to ensuring that the system is administered openly
and that the persons concerned are informed, Member States
should communicate to the other Member States and to the
Commission the measures which they take pursuant to this Regulation.
For the same reasons, that information should also be
published in the Official Journal of the European Communities.
(10) The conditions governing entry into the territory of the Member
States or the issue of visas do not affect the rules currently
governing recognition of the validity of travel documents.
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 3
(11) In accordance with the principle of proportionality stated in
Article 5 of the Treaty, enacting a Regulation listing the third
countries whose nationals must be in possession of visas when
crossing the external borders, and those whose nationals are
exempt from that requirement, is both a necessary and an appropriate
means of ensuring that the common visa rules operate
efficiently.
▼M1
(12) This Regulation provides for full harmonisation as regards the
third countries whose nationals are subject to the visa requirement
for the crossing of Member States' external borders and those
whose nationals are exempt from that requirement,
HAS ADOPTED THIS REGULATION:
Article 1
1. Nationals of third countries on the list in Annex I shall be required
to be in possession of a visa when crossing the external borders of the
Member States.
▼M5
▼C1
Without prejudice to the requirements stemming from the European
Agreement on the Abolition of Visas for Refugees signed at Strasbourg
on 20 April 1959, recognised refugees and stateless persons shall be
required to be in possession of a visa when crossing the external borders
of the Member States if the third country in which they are resident and
which has issued them with their travel document is a third country
listed in Annex I to this Regulation.
▼B
2. ►M1 Nationals of third countries on the list in Annex II shall be
exempt from the requirement set out in paragraph 1 for stays of no more
than three months in all. ◄
▼M5
▼C1
The following shall also be exempt from the visa requirement:
— the nationals of third countries listed in Annex I to this Regulation
who are holders of a local border traffic card issued by the Member
States pursuant to Regulation (EC) No 1931/2006 of the European
Parliament and of the Council of 20 December 2006 laying down
rules on local border traffic at the external land borders of the
Member States and amending the provisions of the Schengen
Convention (1) when these holders exercise their right within the
context of the Local Border Traffic regime;
— school pupils who are nationals of a third country listed in Annex I
and who reside in a Member State applying Council Decision 94/­
795/JHA of 30 November 1994 on a joint action adopted by the
Council on the basis of Article K.3.2.b of the Treaty on European
Union concerning travel facilities for school pupils from third
countries resident in a Member State (2) and are travelling in the
context of a school excursion as members of a group of school
pupils accompanied by a teacher from the school in question;
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 4
(1) OJ L 405, 20.12.2006, p. 1.
(2) OJ L 327, 19.12.1994, p. 1.
— recognised refugees and stateless persons and other persons who do
not hold the nationality of any country who reside in a Member
State and are holders of a travel document issued by that Member
State.
▼B
3. Nationals of new third countries formerly part of countries on the
lists in Annexes I and II shall be subject respectively to the provisions
of paragraphs 1 and 2 unless and until the Council decides otherwise
under the procedure laid down in the relevant provision of the Treaty.
▼M3
4. Where a third country listed in Annex II introduces a visa
requirement for nationals of a Member State, the following provisions
shall apply:
(a) within 90 days of such introduction, or its announcement, the
Member State concerned shall notify the Council and the
Commission in writing; the notification shall be published in the
C series of the Official Journal of the European Union. The notification
shall specify the date of implementation of the measure and
the type of travel documents and visas concerned.
If the third country decides to lift the visa obligation before the
expiry of this deadline, the notification becomes superfluous;
(b) the Commission shall immediately after publication of that notification
and in consultation with the Member State concerned, take
steps with the authorities of the third country in order to restore
visa-free travel;
(c) within 90 days after publication of that notification, the
Commission, in consultation with the Member State concerned,
shall report to the Council. The report may be accompanied by a
proposal providing for the temporary restoration of the visa
requirement for nationals of the third country in question. The
Commission may also present this proposal after deliberations in
Council on its report. The Council shall act on such proposal by a
qualified majority within three months;
(d) if it considers it necessary, the Commission may present a proposal
for the temporary restoration of the visa requirement for nationals of
the third country referred to in subparagraph (c) without a prior
report. The procedure provided for in subparagraph (c) shall apply
to that proposal. The Member State concerned may state whether it
wishes the Commission to refrain from the temporary restoration of
such visa requirement without a prior report;
(e) the procedure referred to in subparagraphs (c) and (d) does not
affect the Commission’s right to present a proposal amending this
Regulation in order to transfer the third country concerned to Annex
I. Where a temporary measure as referred to in subparagraphs (c)
and (d) has been decided, the proposal amending this Regulation
shall be presented by the Commission at the latest nine months after
the entry into force of the temporary measure. Such a proposal shall
also include provisions for lifting of temporary measures, which
may have been introduced pursuant to the procedures referred to
in subparagraphs (c) and (d). In the meantime the Commission will
continue its efforts in order to induce the authorities of the third
country in question to reinstall visa-free travel for the nationals of
the Member State concerned;
▼C1
2001R0539 — EN — 11.01.2011 — 007.001 — 5
(f) where the third country in question abolishes the visa requirement,
the Member State shall immediately notify the Council and the
Commission to that effect. The notification shall be published in
the C series of the Official Journal of the European Union. Any
temporary measure decided upon under subparagraph (d) shall
terminate seven days after the publication in the Official Journal.
In case the third country in question has introduced a visa
requirement for nationals of two or more Member States the termination
of the temporary measure will only terminate after the last
publication.
5. As long as visa exemption reciprocity continues not to exist with
any third country listed in Annex II in relation to any of the Member
States, the Commission shall report to the European Parliament and the
Council before the 1 July of every even-numbered year on the situation
of non-reciprocity and shall, if necessary, submit appropriate proposals.
▼B
Article 2
For the purposes of this Regulation, ‘visa’ shall mean an authorisation
issued by a Member State or a decision taken by such State which is
required with a view to:
— entry for an intended stay in that Member State or in several
Member States of no more than three months in total,
— entry for transit through the territory of that Member State or several
Member States, except for transit at an airport.
▼M5
▼C1
__________
▼B
Article 4
1. A Member State may provide for exceptions from the visa
requirement provided for by Article 1(1) or from the exemption from
the visa requirement provided for by Article 1(2) as regards:
▼M5
▼C1
(a) holders of diplomatic passports, service/official passports or special
passports in accordance with one of the procedures laid down in
Articles 1(1) and 2(1) of Regulation (EC) No 789/2001 of 24 April
2001 reserving to the Council implementing powers with regard to
certain detailed provisions and practical procedures for examining
visa applications (1).
▼B
(b) civilian air and sea crew;
(c) the flight crew and attendants on emergency or rescue flights and
other helpers in the event of disaster or accident;
(d) the civilian crew of ships navigating in international waters;
▼M3
2001R0539 — EN — 11.01.2011 — 007.001 — 6
(1) OJ L 116, 26.4.2001, p. 2. Regulation as amended by Decision 2004/927/EC
(OJ L 396, 31.12.2004, p. 45).
(e) the holders of laissez-passer issued by some intergovernmental international
organisations to their officials.
▼M5
▼C1
2. A Member State may exempt from the visa requirement:
(a) a school pupil having the nationality of a third country listed in
Annex I who resides in a third country listed in Annex II or in
Switzerland and Liechtenstein and is travelling in the context of a
school excursion as a member of a group of school pupils accompanied
by a teacher from the school in question;
(b) recognised refugees and stateless persons if the third country where
they reside and which issued their travel document is one of the
third countries listed in Annex II;
(c) members of the armed forces travelling on NATO or Partnership for
Peace business and holders of identification and movement orders
provided for by the Agreement of 19 June 1951 between the Parties
to the North Atlantic Treaty Organisation regarding the status of
their forces.
▼B
3. A Member State may provide for exceptions from the exemption
from the visa requirement provided for in Article 1(2) as regards
persons carrying out a paid activity during their stay.
Article 5
1. Within 10 working days of the entry into force of this Regulation,
Member States shall communicate to the other Member States and the
Commission the measures they have taken pursuant to Article 3, second
indent and Article 4. Any further changes to those measures shall be
similarly communicated within five working days.
2. The Commission shall publish the measures communicated
pursuant to paragraph 1 in the Official Journal of the European
Communities for information.
Article 6
This Regulation shall not affect the competence of Member States with
regard to the recognition of States and territorial units and passports,
travel and identity documents issued by their authorities.
Article 7
1. Council Regulation (EC) No 574/1999 (1) shall be replaced by this
Regulation.
2. The final versions of the Common Consular Instruction (CCI) and
of the Common Manual (CM), as they result from the Decision of the
Schengen Executive Committee of 28 April 1999 (SCH/Com-ex(99) 13)
shall be amended as follows:
1. the heading of Annex 1, part I of the CCI and of Annex 5, part I of
the CM, shall be replaced by the following:
‘Common list of third countries the nationals of which are subject to
the visa requirement imposed by Regulation (EC) No 539/2001’;
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 7
(1) OJ L 72, 18.3.1999, p. 2.
2. the list in Annex 1, part I of the CCI and in Annex 5, part I of the
CM shall be replaced by the list in Annex I to this Regulation;
3. the heading of Annex 1, part II of the CCI and of Annex 5, part II of
the CM shall be replaced by the following:
‘Common list of third countries the nationals of which are exempted
from the visa requirement by Regulation (EC) No 539/2001’;
4. the list in Annex 1, part II of the CCI and in Annex 5, part II of the
CM shall be replaced by the list in Annex II to this Regulation;
5. part III of Annex 1 to the CCI and part III of Annex 5 of the CM
shall be deleted.
3. The decisions of the Schengen Executive Committee of
15 December 1997 (SCH/Com-ex(97)32) and of 16 December 1998
(SCH/Com-ex(98)53, rev.2) shall be repealed.
▼M1
Article 8
This Regulation shall enter into force on the 20th day following that of
its publication in the Official Journal of the European Communities.
▼B
This Regulation shall be binding in its entirety and directly applicable in
the Member States in accordance with the Treaty establishing the
European Community.
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 8
ANNEX I
Common list referred to in Article 1(1)
1. STATES
Afghanistan
▼M7
__________
▼B
Algeria
Angola
▼M5
▼C1
__________
▼B
Armenia
Azerbaijan
▼M5
▼C1
__________
▼B
Bahrain
Bangladesh
▼M5
▼C1
__________
▼B
Belarus
Belize
Benin
Bhutan
▼M5
▼C1
Bolivia
▼M7
__________
▼B
Botswana
Burkina Faso
Burma/Myanmar
Burundi
Cambodia
Cameroon
Cape Verde
Central African Republic
Chad
China
Colombia
Congo
Côte d'Ivoire
Cuba
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 9
Democratic Republic of the Congo
Djijbouti
Dominica
Dominican Republic
▼M5
▼C1
__________
▼M2
Ecuador
▼B
Egypt
Equatorial Guinea
Eritrea
Ethiopia
Fiji
▼M6
__________
▼B
Gabon
Gambia
Georgia
Ghana
Grenada
Guinea
Guinea-Bissau
Guyana
Haiti
India
Indonesia
Iran
Iraq
Jamaica
Jordan
Kazakhstan
Kenya
Kiribati
Kuwait
Kyrgyzstan
Laos
Lebanon
Lesotho
Liberia
Libya
Madagascar
Malawi
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 10
Maldives
Mali
Marshall Islands
Mauritania
▼M5
▼C1
__________
▼B
Micronesia
Moldova
Mongolia
▼M6
__________
▼B
Morocco
Mozambique
Namibia
Nauru
Nepal
Niger
Nigeria
North Korea
▼M8
__________
▼B
Oman
Pakistan
Palau
Papua New Guinea
Peru
Philippines
Qatar
Russia
Rwanda
▼M5
▼C1
__________
▼B
Saint Lucia
Saint Vincent and the Grenadines
▼M5
▼C1
Samoa
▼B
São Tomé and Príncipe
Saudi Arabia
Senegal
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 11
__________
▼M5
▼C1
__________
▼B
Sierra Leone
Solomon Islands
Somalia
South Africa
Sri Lanka
Sudan
Surinam
Swaziland
Syria
Tajikistan
Tanzania
Thailand
The Comoros
▼M5
▼C1
Timor-Leste
▼B
Togo
Tonga
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Tuvalu
Uganda
Ukraine
United Arab Emirates
Uzbekistan
Vanuatu
Vietnam
▼M5
▼C1
__________
▼B
Yemen
Zambia
Zimbabwe
▼M6
2001R0539 — EN — 11.01.2011 — 007.001 — 12
2. ENTITIES AND TERRITORIAL AUTHORITIES THAT ARE NOT
RECOGNISED AS STATES BY AT LEAST ONE MEMBER STATE
▼M2
__________
▼B
Palestinian Authority
▼M8
__________
▼M6
Kosovo as defined by the United Nations Security Council Resolution 1244 of
10 June 1999
▼M5
▼C1
3. BRITISH CITIZENS WHO ARE NOT NATIONALS OF THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND FOR
THE PURPOSES OF COMMUNITY LAW:
British overseas territories citizens who do not have the right of abode in the
United Kingdom
British overseas citizens
British subjects who do not have the right of abode in the United Kingdom
British protected persons
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 13
ANNEX II
Common list referred to in Article 1(2)
1. STATES
▼M7
Albania (1)
▼B
Andorra
▼M5
▼C1
Antigua and Barbuda (2)
▼B
Argentina
Australia
▼M5
▼C1
Bahamy (2)
Barbados (2)
__________
▼M7
Bosnia and Herzegovina (1)
▼B
Brazil
▼M5
▼C1
Brunei Darussalam
▼M4
__________
▼B
Canada
Chile
Costa Rica
Croatia
▼A1
__________
▼M2
__________
▼A1
__________
▼M6
former Yugoslav Republic of Macedonia (3)
▼B
Guatemala
Holy See
Honduras
▼A1
__________
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 14
(1) The exemption from the visa requirement applies only to holders of biometric passports.
(2) The exemption from the visa requirement will apply from the date of entry into force of
an agreement on visa exemption to be concluded with the European Community.
(3) The visa requirement exemption applies only to holders of biometric passports.
Israel
Japan
▼A1
__________
▼B
Malaysia
▼A1
__________
▼M5
▼C1
Mauritius (1)
▼B
Mexico
Monaco
▼M6
Montenegro (2)
▼B
New Zealand
Nicaragua
Panama
Paraguay
▼A1
__________
▼M4
__________
▼B
Salvador
San Marino
▼M6
Serbia (excluding holders of Serbian passports issued by the Serbian Coordination
Directorate (in Serbian: Koordinaciona uprava)) (2)
▼M5
▼C1
Seychelles (1)
▼B
Singapore
▼A1
__________
▼B
South Korea
▼M5
▼C1
Saint Kitts and Nevis (1)
▼M2
__________
▼B
United States of America
Uruguay
Venezuela
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 15
(1) The exemption from the visa requirement will apply from the date of entry into force of
an agreement on visa exemption to be concluded with the European Community.
(2) The visa requirement exemption applies only to holders of biometric passports.
2. SPECIAL ADMINISTRATIVE REGIONS OF THE PEOPLE'S REPUBLIC
OF CHINA
Hong Kong SAR (1)
Macao SAR (2)
▼M5
▼C1
3. BRITISH CITIZENS WHO ARE NOT NATIONALS OF THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND FOR
THE PURPOSES OF COMMUNITY LAW:
British nationals (overseas)
▼M8
4. ENTITIES AND TERRITORIAL AUTHORITIES THAT ARE NOT
RECOGNISED AS STATES BY AT LEAST ONE MEMBER STATE:
Taiwan (3)
▼B
2001R0539 — EN — 11.01.2011 — 007.001 — 16
(1) The visa requirement exemption applies only to holders of a ‘Hong Kong Special
Administrative Region’ passport.
(2) The visa requirement exemption applies only to holders of a ‘Região Administrativa
Especial de Macau’ passport.
(3) The exemption from the visa requirement applies only to holders of passports issued by
Taiwan which include an identity card number.
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B REGULATION (EC) No 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL
of 13 July 2009
establishing a Community Code on Visas
(Visa Code)
(OJ L 243, 15.9.2009, p. 1)
Amended by:
Official Journal
No page date
►M1 Commission Regulation (EU) No 977/2011 of 3 October 2011 L 258 9 4.10.2011
2009R0810 — EN — 04.10.2011 — 001.001 — 1
REGULATION (EC) No 810/2009 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL
of 13 July 2009
establishing a Community Code on Visas
(Visa Code)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 62(2)(a) and (b)(ii) thereof,
Having regard to the proposal from the Commission,
Acting in accordance with the procedure laid down in Article 251 of the
Treaty (1),
Whereas:
(1) In accordance with Article 61 of the Treaty, the creation of an
area in which persons may move freely should be accompanied
by measures with respect to external border controls, asylum and
immigration.
(2) Pursuant to Article 62(2) of the Treaty, measures on the crossing
of the external borders of the Member States shall establish rules
on visas for intended stays of no more than three months,
including the procedures and conditions for issuing visas by
Member States.
(3) As regards visa policy, the establishment of a ‘common corpus’
of legislation, particularly via the consolidation and development
of the acquis (the relevant provisions of the Convention implementing
the Schengen Agreement of 14 June 1985 (2) and the
Common Consular Instructions (3), is one of the fundamental
components of ‘further development of the common visa policy
as part of a multi-layer system aimed at facilitating legitimate
travel and tackling illegal immigration through further harmonisation
of national legislation and handling practices at local
consular missions’, as defined in the Hague Programme:
strengthening freedom, security and justice in the European
Union (4).
(4) Member States should be present or represented for visa purposes
in all third countries whose nationals are subject to visa
requirements. Member States lacking their own consulate in a
given third country or in a certain part of a given third country
should endeavour to conclude representation arrangements in
order to avoid a disproportionate effort on the part of visa
applicants to have access to consulates.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 2
(1) Opinion of the European Parliament of 2 April 2009 (not yet published in the
Official Journal) and Council Decision of 25 June 2009.
(2) OJ L 239, 22.9.2000, p. 19.
(3) OJ C 326, 22.12.2005, p. 1.
(4) OJ C 53, 3.3.2005, p. 1.
(5) It is necessary to set out rules on the transit through international
areas of airports in order to combat illegal immigration. Thus
nationals from a common list of third countries should be
required to hold airport transit visas. Nevertheless, in urgent
cases of mass influx of illegal immigrants, Member States
should be allowed to impose such a requirement on nationals
of third countries other than those listed in the common list.
Member States’ individual decisions should be reviewed on an
annual basis.
(6) The reception arrangements for applicants should be made with
due respect for human dignity. Processing of visa applications
should be conducted in a professional and respectful manner
and be proportionate to the objectives pursued.
(7) Member States should ensure that the quality of the service
offered to the public is of a high standard and follows good
administrative practices. They should allocate appropriate
numbers of trained staff as well as sufficient resources in order
to facilitate as much as possible the visa application process.
Member States should ensure that a ‘one-stop’ principle is
applied to all applicants.
(8) Provided that certain conditions are fulfilled, multiple-entry visas
should be issued in order to lessen the administrative burden of
Member States’ consulates and to facilitate smooth travel for
frequent or regular travellers. Applicants known to the
consulate for their integrity and reliability should as far as
possible benefit from a simplified procedure.
(9) Because of the registration of biometric identifiers in the Visa
Information System (VIS) as established by Regulation (EC) No
767/2008 of the European Parliament and of the Council of
9 July 2008 concerning Visa Information System (VIS) and the
exchange of data between Member States on short-stay visas
(VIS Regulation) (1), the appearance of the applicant in person
— at least for the first application — should be one of the basic
requirements for the application for a visa.
(10) In order to facilitate the visa application procedure of any
subsequent application, it should be possible to copy fingerprints
from the first entry into the VIS within a period of 59 months.
Once this period of time has elapsed, the fingerprints should be
collected again.
(11) Any document, data or biometric identifier received by a Member
State in the course of the visa application process shall be
considered a consular document under the Vienna Convention
on Consular Relations of 24 April 1963 and shall be treated in
an appropriate manner.
(12) 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 (2) applies to the Member States with
regard to the processing of personal data pursuant to this Regu­
lation.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 3
(1) OJ L 218, 13.8.2008, p. 60.
(2) OJ L 281, 23.11.1995, p. 31.
(13) In order to facilitate the procedure, several forms of cooperation
should be envisaged, such as limited representation, co-location,
common application centres, recourse to honorary consuls and
cooperation with external service providers, taking into account
in particular data protection requirements set out in Directive
95/46/EC. Member States should, in accordance with the
conditions laid down in this Regulation, determine the type of
organisational structure which they will use in each third country.
(14) It is necessary to make provision for situations in which a
Member State decides to cooperate with an external service
provider for the collection of applications. Such a decision may
be taken if, in particular circumstances or for reasons relating to
the local situation, cooperation with other Member States in the
form of representation, limited representation, co-location or a
Common Application Centre proves not to be appropriate for
the Member State concerned. Such arrangements should be established
in compliance with the general principles for issuing visas
and with the data protection requirements set out in Directive
95/46/EC. In addition, the need to avoid visa shopping should
be taken into consideration when establishing and implementing
such arrangements.
(15) Where a Member State has decided to cooperate with an external
service provider, it should maintain the possibility for all
applicants to lodge applications directly at its diplomatic
missions or consular posts.
(16) A Member State should cooperate with an external service
provider on the basis of a legal instrument which should
contain provisions on its exact responsibilities, on direct and
total access to its premises, information for applicants, confidentiality
and on the circumstances, conditions and procedures for
suspending or terminating the cooperation.
(17) This Regulation, by allowing Member States to cooperate with
external service providers for the collection of applications while
establishing the ‘one-stop’ principle for the lodging of applications,
creates a derogation from the general rule that an
applicant must appear in person at a diplomatic mission or
consular post. This is without prejudice to the possibility of
calling the applicant for a personal interview.
(18) Local Schengen cooperation is crucial for the harmonised application
of the common visa policy and for proper assessment of
migratory and/or security risks. Given the differences in local
circumstances, the operational application of particular legislative
provisions should be assessed among Member States’ diplomatic
missions and consular posts in individual locations in order to
ensure a harmonised application of the legislative provisions to
prevent visa shopping and different treatment of visa applicants.
(19) Statistical data are an important means of monitoring migratory
movements and can serve as an efficient management tool.
Therefore, such data should be compiled regularly in a
common format.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 4
(20) The measures necessary for the implementation of this Regulation
should be adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the procedures for
the exercise of implementing powers conferred on the
Commission (1).
(21) In particular, the Commission should be empowered to adopt
amendments to the Annexes to this Regulation. Since those
measures are of general scope and are designed to amend nonessential
elements of this Regulation, inter alia, by supplementing
it with new non-essential elements, they must be adopted in
accordance with the regulatory procedure with scrutiny
provided for in Article 5a of Decision 1999/468/EC.
(22) In order to ensure the harmonised application of this Regulation
at operational level, instructions should be drawn up on the
practice and procedures to be followed by Member States when
processing visa applications.
(23) A common Schengen visa Internet site is to be established to
improve the visibility and a uniform image of the common visa
policy. Such a site will serve as a means to provide the general
public with all relevant information in relation to the application
for a visa.
(24) Appropriate measures should be adopted for the monitoring and
evaluation of this Regulation.
(25) The VIS Regulation and Regulation (EC) No 562/2006 of the
European Parliament and of the Council of 15 March 2006 establishing
a Community Code on the rules governing the movement
of persons across borders (Schengen Borders Code) (2) should be
amended in order to take account of the provisions of this Regu­
lation.
(26) Bilateral agreements concluded between the Community and third
countries aiming at facilitating the processing of applications for
visas may derogate from the provisions of this Regulation.
(27) When a Member State hosts the Olympic Games and the Paralympic
Games, a particular scheme facilitating the issuing of
visas to members of the Olympic family should apply.
(28) Since the objective of this Regulation, namely the establishment
of the procedures and conditions for issuing visas for transit
through or intended stays in the territory of the Member States
not exceeding three months in any six-month period, cannot be
sufficiently achieved by the Member States and can therefore 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 Regulation does not
go beyond what is necessary in order to achieve that objective.
(29) This Regulation respects fundamental rights and observes the
principles recognised in particular by the Council of Europe’s
Convention for the Protection of Human Rights and Fundamental
Freedoms and by the Charter of Fundamental Rights of the
European Union.
(30) The conditions governing entry into the territory of the Member
States or the issue of visas do not affect the rules currently
governing recognition of the validity of travel documents.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 5
(1) OJ L 184, 17.7.1999, p. 23.
(2) OJ L 105, 13.4.2006, p. 1.
(31) 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 Regulation
and is not bound by it, or subject to its application. Given that
this Regulation builds on the Schengen acquis under the
provisions of Title IV of Part Three of the Treaty establishing
the European Community, Denmark shall, in accordance with
Article 5 of that Protocol, decide within a period of six months
after the date of adoption of this Regulation whether it will
implement it in its national law.
(32) As regards Iceland and Norway, this Regulation constitutes a
development of provisions of the Schengen acquis within the
meaning of the Agreement concluded between 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 (1) which fall within the area referred to in
Article 1, point B of Council Decision 1999/437/EC (2) on certain
arrangements for the application of that Agreement.
(33) An arrangement should be made to allow representatives of
Iceland and Norway to be associated with the work of
committees assisting the Commission in the exercise of its implementing
powers under this Regulation. Such an arrangement has
been contemplated in the Exchange of Letters between the
Council of the European Union and Iceland and Norway
concerning committees which assist the European Commission
in the exercise of its executive powers (3), annexed to the abovementioned
Agreement. The Commission has submitted to the
Council a draft recommendation with a view to negotiating this
arrangement.
(34) As regards Switzerland, this Regulation constitutes a development
of the provisions of the Schengen acquis within the meaning of
the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss Confederation’s
association with the implementation, application and
development of the Schengen acquis (4), which fall within the
area referred to in Article 1, point B, of Decision 1999/437/EC
read in conjunction with Article 3 of Council Decision
2008/146/EC (5) on the conclusion of that Agreement.
(35) As regards Liechtenstein, this Regulation constitutes a development
of provisions of the Schengen acquis within the
meaning of the Protocol signed between the European Union,
the European Community, the Swiss Confederation and the Principality
of Liechtenstein on the accession of the Principality of
Liechtenstein to the Agreement concluded between the European
Union, the European Community and the Swiss Confederation on
the Swiss Confederation’s association with the implementation,
application and development of the Schengen acquis, which fall
within the area referred to in Article 1, point B, of Decision
1999/437/EC read in conjunction with Article 3 of Council
Decision 2008/261/EC (6) on the signing of that Protocol.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 6
(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) OJ L 176, 10.7.1999, p. 53.
(4) OJ L 53, 27.2.2008, p. 52.
(5) OJ L 53, 27.2.2008, p. 1.
(6) OJ L 83, 26.3.2008, p. 3.
(36) This Regulation constitutes a development of the provisions of
the Schengen acquis in which the United Kingdom does not take
part, in accordance with Council Decision 2000/365/EC of
29 May 2000 concerning the request of the United Kingdom of
Great Britain and Northern Ireland to take part in some of the
provisions of the Schengen acquis (1). The United Kingdom is
therefore not taking part in its adoption and is not bound by it or
subject to its application.
(37) This Regulation constitutes a development of the provisions of
the Schengen acquis in which Ireland does not take part, in
accordance with Council Decision 2002/192/EC of 28 February
2002 concerning Ireland’s request to take part in some of the
provisions of the Schengen acquis (2). Ireland is therefore not
taking part in the adoption of the Regulation and is not bound
by it or subject to its application.
(38) This Regulation, with the exception of Article 3, constitutes
provisions building on the Schengen acquis or otherwise
relating to it within the meaning of Article 3(2) of the 2003
Act of Accession and within the meaning of Article 4(2) of the
2005 Act of Accession,
HAVE ADOPTED THIS REGULATION:
TITLE I
GENERAL PROVISIONS
Article 1
Objective and scope
1. This Regulation establishes the procedures and conditions for
issuing visas for transit through or intended stays in the territory of
the Member States not exceeding three months in any six-month period.
2. The provisions of this Regulation shall apply to any third-country
national who must be in possession of a visa when crossing the external
borders of the Member States pursuant to Council Regulation (EC) No
539/2001 of 15 March 2001 listing the third countries whose nationals
must be in possession of visas when crossing the external borders and
those whose nationals are exempt from that requirement (3), without
prejudice to:
(a) the rights of free movement enjoyed by third-country nationals who
are family members of citizens of the Union;
(b) the equivalent rights enjoyed by third-country nationals and their
family members, who, under agreements between the Community
and its Member States, on the one hand, and these third countries,
on the other, enjoy rights of free movement equivalent to those of
Union citizens and members of their families.
3. This Regulation also lists the third countries whose nationals are
required to hold an airport transit visa by way of exception from the
principle of free transit laid down in Annex 9 to the Chicago
Convention on International Civil Aviation, and establishes the
procedures and conditions for issuing visas for the purpose of transit
through the international transit areas of Member States’ airports.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 7
(1) OJ L 131, 1.6.2000, p. 43.
(2) OJ L 64, 7.3.2002, p. 20.
(3) OJ L 81, 21.3.2001, p. 1.
Article 2
Definitions
For the purpose of this Regulation the following definitions shall apply:
1. ‘third-country national’ means any person who is not a citizen of
the Union within the meaning of Article 17(1) of the Treaty;
2. ‘visa’ means an authorisation issued by a Member State with a view
to:
(a) transit through or an intended stay in the territory of the
Member States of a duration of no more than three months in
any six-month period from the date of first entry in the territory
of the Member States;
(b) transit through the international transit areas of airports of the
Member States;
3. ‘uniform visa’ means a visa valid for the entire territory of the
Member States;
4. ‘visa with limited territorial validity’ means a visa valid for the
territory of one or more Member States but not all Member States;
5. ‘airport transit visa’ means a visa valid for transit through the international
transit areas of one or more airports of the Member States;
6. ‘visa sticker’ means the uniform format for visas as defined by
Council Regulation (EC) No 1683/95 of 29 May 1995 laying
down a uniform format for visas (1);
7. ‘recognised travel document’ means a travel document recognised
by one or more Member States for the purpose of affixing visas;
8. ‘separate sheet for affixing a visa’ means the uniform format for
forms for affixing the visa issued by Member States to persons
holding travel documents not recognised by the Member State
drawing up the form as defined by Council Regulation (EC) No
333/2002 of 18 February 2002 on a uniform format for forms for
affixing the visa issued by Member States to persons holding travel
documents not recognised by the Member State drawing up the
form (2);
9. ‘consulate’ means a Member State’s diplomatic mission or a
Member State’s consular post authorised to issue visas and
headed by a career consular officer as defined by the Vienna
Convention on Consular Relations of 24 April 1963;
10. ‘application’ means an application for a visa;
11. ‘commercial intermediary’ means a private administrative agency,
transport company or travel agency (tour operator or retailer).
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(1) OJ L 164, 14.7.1995, p. 1.
(2) OJ L 53, 23.2.2002, p. 4.
TITLE II
AIRPORT TRANSIT VISA
Article 3
Third-country nationals required to hold an airport transit visa
1. Nationals of the third countries listed in Annex IV shall be
required to hold an airport transit visa when passing through the international
transit areas of airports situated on the territory of the Member
States.
2. In urgent cases of mass influx of illegal immigrants, individual
Member States may require nationals of third countries other than those
referred to in paragraph 1 to hold an airport transit visa when passing
through the international transit areas of airports situated on their
territory. Member States shall notify the Commission of such
decisions before their entry into force and of withdrawals of such an
airport transit visa requirement.
3. Within the framework of the Committee referred to in
Article 52(1), those notifications shall be reviewed on an annual basis
for the purpose of transferring the third country concerned to the list set
out in Annex IV.
4. If the third country is not transferred to the list set out in Annex
IV, the Member State concerned may maintain, provided that the
conditions in paragraph 2 are met, or withdraw the airport transit visa
requirement.
5. The following categories of persons shall be exempt from the
requirement to hold an airport transit visa provided for in paragraphs
1 and 2:
(a) holders of a valid uniform visa, national long-stay visa or residence
permit issued by a Member State;
(b) third-country nationals holding the valid residence permits listed in
Annex V issued by Andorra, Canada, Japan, San Marino or the
United States of America guaranteeing the holder’s unconditional
readmission;
(c) third-country nationals holding a valid visa for a Member State or
for a State party to the Agreement on the European Economic Area
of 2 May 1992, Canada, Japan or the United States of America, or
when they return from those countries after having used the visa;
(d) family members of citizens of the Union as referred to in
Article 1(2)(a);
(e) holders of diplomatic passports;
(f) flight crew members who are nationals of a contracting Party to the
Chicago Convention on International Civil Aviation.
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TITLE III
PROCEDURES AND CONDITIONS FOR ISSUING VISAS
CHAPTER I
Authorities taking part in the procedures relating to applications
Article 4
Authorities competent for taking part in the procedures relating to
applications
1. Applications shall be examined and decided on by consulates.
2. By way of derogation from paragraph 1, applications may be
examined and decided on at the external borders of the Member
States by the authorities responsible for checks on persons, in
accordance with Articles 35 and 36.
3. In the non-European overseas territories of Member States, applications
may be examined and decided on by the authorities designated
by the Member State concerned.
4. A Member State may require the involvement of authorities other
than the ones designated in paragraphs 1 and 2 in the examination of
and decision on applications.
5. A Member State may require to be consulted or informed by
another Member State in accordance with Articles 22 and 31.
Article 5
Member State competent for examining and deciding on an
application
1. The Member State competent for examining and deciding on an
application for a uniform visa shall be:
(a) the Member State whose territory constitutes the sole destination of
the visit(s);
(b) if the visit includes more than one destination, the Member State
whose territory constitutes the main destination of the visit(s) in
terms of the length or purpose of stay; or
(c) if no main destination can be determined, the Member State whose
external border the applicant intends to cross in order to enter the
territory of the Member States.
2. The Member State competent for examining and deciding on an
application for a uniform visa for the purpose of transit shall be:
(a) in the case of transit through only one Member State, the Member
State concerned; or
(b) in the case of transit through several Member States, the Member
State whose external border the applicant intends to cross to start
the transit.
3. The Member State competent for examining and deciding on an
application for an airport transit visa shall be:
(a) in the case of a single airport transit, the Member State on whose
territory the transit airport is situated; or
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(b) in the case of double or multiple airport transit, the Member State
on whose territory the first transit airport is situated.
4. Member States shall cooperate to prevent a situation in which an
application cannot be examined and decided on because the Member
State that is competent in accordance with paragraphs 1 to 3 is neither
present nor represented in the third country where the applicant lodges
the application in accordance with Article 6.
Article 6
Consular territorial competence
1. An application shall be examined and decided on by the consulate
of the competent Member State in whose jurisdiction the applicant
legally resides.
2. A consulate of the competent Member State shall examine and
decide on an application lodged by a third-country national legally
present but not residing in its jurisdiction, if the applicant has
provided justification for lodging the application at that consulate.
Article 7
Competence to issue visas to third-country nationals legally present
within the territory of a Member State
Third-country nationals who are legally present in the territory of a
Member State and who are required to hold a visa to enter the
territory of one or more other Member States shall apply for a visa at
the consulate of the Member State that is competent in accordance with
Article 5(1) or (2).
Article 8
Representation arrangements
1. A Member State may agree to represent another Member State that
is competent in accordance with Article 5 for the purpose of examining
applications and issuing visas on behalf of that Member State. A
Member State may also represent another Member State in a limited
manner solely for the collection of applications and the enrolment of
biometric identifiers.
2. The consulate of the representing Member State shall, when
contemplating refusing a visa, submit the application to the relevant
authorities of the represented Member State in order for them to take
the final decision on the application within the time limits set out in
Article 23(1), (2) or (3).
3. The collection and transmission of files and data to the represented
Member State shall be carried out in compliance with the relevant data
protection and security rules.
4. A bilateral arrangement shall be established between the representing
Member State and the represented Member State containing
the following elements:
(a) it shall specify the duration of such representation, if only
temporary, and procedures for its termination;
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(b) it may, in particular when the represented Member State has a
consulate in the third country concerned, provide for the provision
of premises, staff and payments by the represented Member State;
(c) it may stipulate that applications from certain categories of thirdcountry
nationals are to be transmitted by the representing Member
State to the central authorities of the represented Member State for
prior consultation as provided for in Article 22;
(d) by way of derogation from paragraph 2, it may authorise the
consulate of the representing Member State to refuse to issue a
visa after examination of the application.
5. Member States lacking their own consulate in a third country shall
endeavour to conclude representation arrangements with Member States
that have consulates in that country.
6. With a view to ensuring that a poor transport infrastructure or long
distances in a specific region or geographical area does not require a
disproportionate effort on the part of applicants to have access to a
consulate, Member States lacking their own consulate in that region
or area shall endeavour to conclude representation arrangements with
Member States that have consulates in that region or area.
7. The represented Member State shall notify the representation
arrangements or the termination of such arrangements to the
Commission before they enter into force or are terminated.
8. Simultaneously, the consulate of the representing Member State
shall inform both the consulates of other Member States and the
delegation of the Commission in the jurisdiction concerned about representation
arrangements or the termination of such arrangements before
they enter into force or are terminated.
9. If the consulate of the representing Member State decides to
cooperate with an external service provider in accordance with
Article 43, or with accredited commercial intermediaries as provided
for in Article 45, such cooperation shall include applications covered
by representation arrangements. The central authorities of the represented
Member State shall be informed in advance of the terms of
such cooperation.
CHAPTER II
Application
Article 9
Practical modalities for lodging an application
1. Applications shall be lodged no more than three months before the
start of the intended visit. Holders of a multiple-entry visa may lodge
the application before the expiry of the visa valid for a period of at least
six months.
2. Applicants may be required to obtain an appointment for the
lodging of an application. The appointment shall, as a rule, take place
within a period of two weeks from the date when the appointment was
requested.
3. In justified cases of urgency, the consulate may allow applicants to
lodge their applications either without appointment, or an appointment
shall be given immediately.
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4. Applications may be lodged at the consulate by the applicant or by
accredited commercial intermediaries, as provided for in Article 45(1),
without prejudice to Article 13, or in accordance with Article 42 or 43.
Article 10
General rules for lodging an application
1. Without prejudice to the provisions of Articles 13, 42, 43 and 45,
applicants shall appear in person when lodging an application.
2. Consulates may waive the requirement referred to in paragraph 1
when the applicant is known to them for his integrity and reliability.
3. When lodging the application, the applicant shall:
(a) present an application form in accordance with Article 11;
(b) present a travel document in accordance with Article 12;
(c) present a photograph in accordance with the standards set out in
Regulation (EC) No 1683/95 or, where the VIS is operational
pursuant to Article 48 of the VIS Regulation, in accordance with
the standards set out in Article 13 of this Regulation;
(d) allow the collection of his fingerprints in accordance with
Article 13, where applicable;
(e) pay the visa fee in accordance with Article 16;
(f) provide supporting documents in accordance with Article 14 and
Annex II;
(g) where applicable, produce proof of possession of adequate and valid
travel medical insurance in accordance with Article 15.
Article 11
Application form
1. Each applicant shall submit a completed and signed application
form, as set out in Annex I. Persons included in the applicant’s travel
document shall submit a separate application form. Minors shall submit
an application form signed by a person exercising permanent or
temporary parental authority or legal guardianship.
2. Consulates shall make the application form widely available and
easily accessible to applicants free of charge.
3. The form shall be available in the following languages:
(a) the official language(s) of the Member State for which a visa is
requested;
(b) the official language(s) of the host country;
(c) the official language(s) of the host country and the official
language(s) of the Member State for which a visa is requested; or
(d) in case of representation, the official language(s) of the representing
Member State.
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In addition to the language(s) referred to in point (a), the form may be
made available in another official language of the institutions of the
European Union.
4. If the application form is not available in the official language(s)
of the host country, a translation of it into that/those language(s) shall
be made available separately to applicants.
5. A translation of the application form into the official language(s)
of the host country shall be produced under local Schengen cooperation
provided for in Article 48.
6. The consulate shall inform applicants of the language(s) which
may be used when filling in the application form.
Article 12
Travel document
The applicant shall present a valid travel document satisfying the
following criteria:
(a) its validity shall extend at least three months after the intended date
of departure from the territory of the Member States or, in the case
of several visits, after the last intended date of departure from the
territory of the Member States. However, in a justified case of
emergency, this obligation may be waived;
(b) it shall contain at least two blank pages;
(c) it shall have been issued within the previous 10 years.
Article 13
Biometric identifiers
1. Member States shall collect biometric identifiers of the applicant
comprising a photograph of him and his 10 fingerprints in accordance
with the safeguards laid down in the Council of Europe’s Convention
for the Protection of Human Rights and Fundamental Freedoms, in the
Charter of Fundamental Rights of the European Union and in the United
Nations Convention on the Rights of the Child.
2. At the time of submission of the first application, the applicant
shall be required to appear in person. At that time, the following
biometric identifiers of the applicant shall be collected:
— a photograph, scanned or taken at the time of application, and
— his 10 fingerprints taken flat and collected digitally.
3. Where fingerprints collected from the applicant as part of an
earlier application were entered in the VIS for the first time less than
59 months before the date of the new application, they shall be copied
to the subsequent application.
However, where there is reasonable doubt regarding the identity of the
applicant, the consulate shall collect fingerprints within the period
specified in the first subparagraph.
Furthermore, if at the time when the application is lodged, it cannot be
immediately confirmed that the fingerprints were collected within the
period specified in the first subparagraph, the applicant may request that
they be collected.
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4. In accordance with Article 9(5) of the VIS Regulation, the
photograph attached to each application shall be entered in the VIS.
The applicant shall not be required to appear in person for this purpose.
The technical requirements for the photograph shall be in accordance
with the international standards as set out in the International Civil
Aviation Organization (ICAO) document 9303 Part 1, 6th edition.
5. Fingerprints shall be taken in accordance with ICAO standards and
Commission Decision 2006/648/EC of 22 September 2006 laying down
the technical specifications on the standards for biometric features
related to the development of the Visa Information System (1).
6. The biometric identifiers shall be collected by qualified and duly
authorised staff of the authorities competent in accordance with
Article 4(1), (2) and (3). Under the supervision of the consulates, the
biometric identifiers may also be collected by qualified and duly authorised
staff of an honorary consul as referred to in Article 42 or of an
external service provider as referred to in Article 43. The Member
State(s) concerned shall, where there is any doubt, provide for the
possibility of verifying at the consulate fingerprints which have been
taken by the external service provider.
7. The following applicants shall be exempt from the requirement to
give fingerprints:
(a) children under the age of 12;
(b) persons for whom fingerprinting is physically impossible. If the
fingerprinting of fewer than 10 fingers is possible, the maximum
number of fingerprints shall be taken. However, should the impossibility
be temporary, the applicant shall be required to give the
fingerprints at the following application. The authorities competent
in accordance with Article 4(1), (2) and (3) shall be entitled to ask
for further clarification of the grounds for the temporary impossibility.
Member States shall ensure that appropriate procedures guaranteeing
the dignity of the applicant are in place in the event of
there being difficulties in enrolling;
(c) heads of State or government and members of a national
government with accompanying spouses, and the members of
their official delegation when they are invited by Member States’
governments or by international organisations for an official
purpose;
(d) sovereigns and other senior members of a royal family, when they
are invited by Member States’ governments or by international
organisations for an official purpose.
8. In the cases referred to in paragraph 7, the entry ‘not applicable’
shall be introduced in the VIS in accordance with Article 8(5) of the
VIS Regulation.
Article 14
Supporting documents
1. When applying for a uniform visa, the applicant shall present:
(a) documents indicating the purpose of the journey;
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(1) OJ L 267, 27.9.2006, p. 41.
(b) documents in relation to accommodation, or proof of sufficient
means to cover his accommodation;
(c) documents indicating that the applicant possesses sufficient means
of subsistence both for the duration of the intended stay and for the
return to his country of origin or residence, or for the transit to a
third country into which he is certain to be admitted, or that he is in
a position to acquire such means lawfully, in accordance with
Article 5(1)(c) and (3) of the Schengen Borders Code;
(d) information enabling an assessment of the applicant’s intention to
leave the territory of the Member States before the expiry of the
visa applied for.
2. When applying for an airport transit visa, the applicant shall
present:
(a) documents in relation to the onward journey to the final destination
after the intended airport transit;
(b) information enabling an assessment of the applicant’s intention not
to enter the territory of the Member States.
3. A non-exhaustive list of supporting documents which the
consulate may request from the applicant in order to verify the
fulfilment of the conditions listed in paragraphs 1 and 2 is set out in
Annex II.
4. Member States may require applicants to present a proof of sponsorship
and/or private accommodation by completing a form drawn up
by each Member State. That form shall indicate in particular:
(a) whether its purpose is proof of sponsorship and/or of accom­
modation;
(b) whether the host is an individual, a company or an organisation;
(c) the host’s identity and contact details;
(d) the invited applicant(s);
(e) the address of the accommodation;
(f) the length and purpose of the stay;
(g) possible family ties with the host.
In addition to the Member State’s official language(s), the form shall be
drawn up in at least one other official language of the institutions of the
European Union. The form shall provide the person signing it with the
information required pursuant to Article 37(1) of the VIS Regulation. A
specimen of the form shall be notified to the Commission.
5. Within local Schengen cooperation the need to complete and
harmonise the lists of supporting documents shall be assessed in each
jurisdiction in order to take account of local circumstances.
6. Consulates may waive one or more of the requirements of
paragraph 1 in the case of an applicant known to them for his
integrity and reliability, in particular the lawful use of previous visas,
if there is no doubt that he will fulfil the requirements of Article 5(1) of
the Schengen Borders Code at the time of the crossing of the external
borders of the Member States.
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Article 15
Travel medical insurance
1. Applicants for a uniform visa for one or two entries shall prove
that they are in possession of adequate and valid travel medical
insurance to cover any expenses which might arise in connection with
repatriation for medical reasons, urgent medical attention and/or
emergency hospital treatment or death, during their stay(s) on the
territory of the Member States.
2. Applicants for a uniform visa for more than two entries (multiple
entries) shall prove that they are in possession of adequate and valid
travel medical insurance covering the period of their first intended visit.
In addition, such applicants shall sign the statement, set out in the
application form, declaring that they are aware of the need to be in
possession of travel medical insurance for subsequent stays.
3. The insurance shall be valid throughout the territory of the
Member States and cover the entire period of the person’s intended
stay or transit. The minimum coverage shall be EUR 30 000.
When a visa with limited territorial validity covering the territory of
more than one Member State is issued, the insurance cover shall be
valid at least in the Member States concerned.
4. Applicants shall, in principle, take out insurance in their country
of residence. Where this is not possible, they shall seek to obtain
insurance in any other country.
When another person takes out insurance in the name of the applicant,
the conditions set out in paragraph 3 shall apply.
5. When assessing whether the insurance cover is adequate,
consulates shall ascertain whether claims against the insurance
company would be recoverable in a Member State.
6. The insurance requirement may be considered to have been met
where it is established that an adequate level of insurance may be
presumed in the light of the applicant’s professional situation. The
exemption from presenting proof of travel medical insurance may
concern particular professional groups, such as seafarers, who are
already covered by travel medical insurance as a result of their professional
activities.
7. Holders of diplomatic passports shall be exempt from the
requirement to hold travel medical insurance.
Article 16
Visa fee
1. Applicants shall pay a visa fee of EUR 60.
2. Children from the age of six years and below the age of 12 years
shall pay a visa fee of EUR 35.
3. The visa fee shall be revised regularly in order to reflect the
administrative costs.
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4. The visa fee shall be waived for applicants belonging to one of the
following categories:
(a) children under six years;
(b) school pupils, students, postgraduate students and accompanying
teachers who undertake stays for the purpose of study or
educational training;
(c) researchers from third countries travelling for the purpose of
carrying out scientific research as defined in Recommendation No
2005/761/EC of the European Parliament and of the Council of
28 September 2005 to facilitate the issue by the Member States
of uniform short-stay visas for researchers from third countries
travelling within the Community for the purpose of carrying out
scientific research (1);
(d) representatives of non-profit organisations aged 25 years or less
participating in seminars, conferences, sports, cultural or educational
events organised by non-profit organisations.
5. The visa fee may be waived for:
(a) children from the age of six years and below the age of 12 years;
(b) holders of diplomatic and service passports;
(c) participants aged 25 years or less in seminars, conferences, sports,
cultural or educational events, organised by non-profit organisations.
Within local Schengen cooperation, Members States shall aim to
harmonise the application of these exemptions.
6. In individual cases, the amount of the visa fee to be charged may
be waived or reduced when to do so serves to promote cultural or
sporting interests as well as interests in the field of foreign policy,
development policy and other areas of vital public interest or for
humanitarian reasons.
7. The visa fee shall be charged in euro, in the national currency of
the third country or in the currency usually used in the third country
where the application is lodged, and shall not be refundable except in
the cases referred to in Articles 18(2) and 19(3).
When charged in a currency other than euro, the amount of the visa fee
charged in that currency shall be determined and regularly reviewed in
application of the euro foreign exchange reference rate set by the
European Central Bank. The amount charged may be rounded up and
consulates shall ensure under local Schengen cooperation that they
charge similar fees.
8. The applicant shall be given a receipt for the visa fee paid.
Article 17
Service fee
1. An additional service fee may be charged by an external service
provider referred to in Article 43. The service fee shall be proportionate
to the costs incurred by the external service provider while performing
one or more of the tasks referred to in Article 43(6).
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(1) OJ L 289, 3.11.2005, p. 23.
2. The service fee shall be specified in the legal instrument referred
to in Article 43(2).
3. Within the framework of local Schengen cooperation, Member
States shall ensure that the service fee charged to an applicant duly
reflects the services offered by the external service provider and is
adapted to local circumstances. Furthermore, they shall aim to
harmonise the service fee applied.
4. The service fee shall not exceed half of the amount of the visa fee
set out in Article 16(1), irrespective of the possible reductions in or
exemptions from the visa fee as provided for in Article 16(2), (4), (5)
and (6).
5. The Member State(s) concerned shall maintain the possibility for
all applicants to lodge their applications directly at its/their consulates.
CHAPTER III
Examination of and decision on an application
Article 18
Verification of consular competence
1. When an application has been lodged, the consulate shall verify
whether it is competent to examine and decide on it in accordance with
the provisions of Articles 5 and 6.
2. If the consulate is not competent, it shall, without delay, return the
application form and any documents submitted by the applicant,
reimburse the visa fee, and indicate which consulate is competent.
Article 19
Admissibility
1. The competent consulate shall verify whether:
— the application has been lodged within the period referred to in
Article 9(1),
— the application contains the items referred to in Article 10(3)(a) to
(c),
— the biometric data of the applicant have been collected, and
— the visa fee has been collected.
2. Where the competent consulate finds that the conditions referred
to in paragraph 1 have been fulfilled, the application shall be admissible
and the consulate shall:
— follow the procedures described in Article 8 of the VIS Regulation,
and
— further examine the application.
Data shall be entered in the VIS only by duly authorised consular staff
in accordance with Articles 6(1), 7, 9(5) and 9(6) of the VIS Regulation.
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3. Where the competent consulate finds that the conditions referred
to in paragraph 1 have not been fulfilled, the application shall be inadmissible
and the consulate shall without delay:
— return the application form and any documents submitted by the
applicant,
— destroy the collected biometric data,
— reimburse the visa fee, and
— not examine the application.
4. By way of derogation, an application that does not meet the
requirements set out in paragraph 1 may be considered admissible on
humanitarian grounds or for reasons of national interest.
Article 20
Stamp indicating that an application is admissible
1. When an application is admissible, the competent consulate shall
stamp the applicant’s travel document. The stamp shall be as set out in
the model in Annex III and shall be affixed in accordance with the
provisions of that Annex.
2. Diplomatic, service/official and special passports shall not be
stamped.
3. The provisions of this Article shall apply to the consulates of the
Member States until the date when the VIS becomes fully operational in
all regions, in accordance with Article 48 of the VIS Regulation.
Article 21
Verification of entry conditions and risk assessment
1. In the examination of an application for a uniform visa, it shall be
ascertained whether the applicant fulfils the entry conditions set out in
Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code, and
particular consideration shall be given to assessing whether the
applicant presents a risk of illegal immigration or a risk to the
security of the Member States and whether the applicant intends to
leave the territory of the Member States before the expiry of the visa
applied for.
2. In respect of each application, the VIS shall be consulted in
accordance with Articles 8(2) and 15 of the VIS Regulation. Member
States shall ensure that full use is made of all search criteria pursuant to
Article 15 of the VIS Regulation in order to avoid false rejections and
identifications.
3. While checking whether the applicant fulfils the entry conditions,
the consulate shall verify:
(a) that the travel document presented is not false, counterfeit or forged;
(b) the applicant’s justification for the purpose and conditions of the
intended stay, and that he has sufficient means of subsistence, both
for the duration of the intended stay and for the return to his
country of origin or residence, or for the transit to a third country
into which he is certain to be admitted, or is in a position to acquire
such means lawfully;
(c) whether the applicant is a person for whom an alert has been issued
in the Schengen Information System (SIS) for the purpose of
refusing entry;
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(d) that the applicant is not considered to be a threat to public policy,
internal security or public health as defined in Article 2(19) of the
Schengen Borders Code or to the international relations of any of
the Member States, in particular where no alert has been issued in
Member States’ national databases for the purpose of refusing entry
on the same grounds;
(e) that the applicant is in possession of adequate and valid travel
medical insurance, where applicable.
4. The consulate shall, where applicable, verify the length of
previous and intended stays in order to verify that the applicant has
not exceeded the maximum duration of authorised stay in the territory
of the Member States, irrespective of possible stays authorised under a
national long-stay visa or a residence permit issued by another Member
State.
5. The means of subsistence for the intended stay shall be assessed in
accordance with the duration and the purpose of the stay and by
reference to average prices in the Member State(s) concerned for
board and lodging in budget accommodation, multiplied by the
number of days stayed, on the basis of the reference amounts set by
the Member States in accordance with Article 34(1)(c) of the Schengen
Borders Code. Proof of sponsorship and/or private accommodation may
also constitute evidence of sufficient means of subsistence.
6. In the examination of an application for an airport transit visa, the
consulate shall in particular verify:
(a) that the travel document presented is not false, counterfeit or forged;
(b) the points of departure and destination of the third-country national
concerned and the coherence of the intended itinerary and airport
transit;
(c) proof of the onward journey to the final destination.
7. The examination of an application shall be based notably on the
authenticity and reliability of the documents submitted and on the
veracity and reliability of the statements made by the applicant.
8. During the examination of an application, consulates may in
justified cases call the applicant for an interview and request additional
documents.
9. A previous visa refusal shall not lead to an automatic refusal of a
new application. A new application shall be assessed on the basis of all
available information.
Article 22
Prior consultation of central authorities of other Member States
1. A Member State may require the central authorities of other
Member States to consult its central authorities during the examination
of applications lodged by nationals of specific third countries or specific
categories of such nationals. Such consultation shall not apply to applications
for airport transit visas.
2. The central authorities consulted shall reply definitively within
seven calendar days after being consulted. The absence of a reply
within this deadline shall mean that they have no grounds for
objecting to the issuing of the visa.
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3. Member States shall notify the Commission of the introduction or
withdrawal of the requirement of prior consultation before it becomes
applicable. This information shall also be given within local Schengen
cooperation in the jurisdiction concerned.
4. The Commission shall inform Member States of such notifications.
5. From the date of the replacement of the Schengen Consultation
Network, as referred to in Article 46 of the VIS Regulation, prior
consultation shall be carried out in accordance with Article 16(2) of
that Regulation.
Article 23
Decision on the application
1. Applications shall be decided on within 15 calendar days of the
date of the lodging of an application which is admissible in accordance
with Article 19.
2. That period may be extended up to a maximum of 30 calendar
days in individual cases, notably when further scrutiny of the application
is needed or in cases of representation where the authorities of
the represented Member State are consulted.
3. Exceptionally, when additional documentation is needed in
specific cases, the period may be extended up to a maximum of 60
calendar days.
4. Unless the application has been withdrawn, a decision shall be
taken to:
(a) issue a uniform visa in accordance with Article 24;
(b) issue a visa with limited territorial validity in accordance with
Article 25;
(c) refuse a visa in accordance with Article 32; or
(d) discontinue the examination of the application and transfer it to the
relevant authorities of the represented Member State in accordance
with Article 8(2).
The fact that fingerprinting is physically impossible, in accordance with
Article 13(7)(b), shall not influence the issuing or refusal of a visa.
CHAPTER IV
Issuing of the visa
Article 24
Issuing of a uniform visa
1. The period of validity of a visa and the length of the authorised
stay shall be based on the examination conducted in accordance with
Article 21.
A visa may be issued for one, two or multiple entries. The period of
validity shall not exceed five years.
In the case of transit, the length of the authorised stay shall correspond
to the time necessary for the purpose of the transit.
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Without prejudice to Article 12(a), the period of validity of the visa
shall include an additional ‘period of grace’ of 15 days.
Member States may decide not to grant such a period of grace for
reasons of public policy or because of the international relations of
any of the Member States.
2. Without prejudice to Article 12(a), multiple-entry visas shall be
issued with a period of validity between six months and five years,
where the following conditions are met:
(a) the applicant proves the need or justifies the intention to travel
frequently and/or regularly, in particular due to his occupational
or family status, such as business persons, civil servants engaged
in regular official contacts with Member States and EU institutions,
representatives of civil society organisations travelling for the
purpose of educational training, seminars and conferences, family
members of citizens of the Union, family members of third-country
nationals legally residing in Member States and seafarers; and
(b) the applicant proves his integrity and reliability, in particular the
lawful use of previous uniform visas or visas with limited territorial
validity, his economic situation in the country of origin and his
genuine intention to leave the territory of the Member States
before the expiry of the visa applied for.
3. The data set out in Article 10(1) of the VIS Regulation shall be
entered into the VIS when a decision on issuing such a visa has been
taken.
Article 25
Issuing of a visa with limited territorial validity
1. A visa with limited territorial validity shall be issued exceptionally,
in the following cases:
(a) when the Member State concerned considers it necessary on
humanitarian grounds, for reasons of national interest or because
of international obligations,
(i) to derogate from the principle that the entry conditions laid
down in Article 5(1)(a), (c), (d) and (e) of the Schengen
Borders Code must be fulfilled;
(ii) to issue a visa despite an objection by the Member State
consulted in accordance with Article 22 to the issuing of a
uniform visa; or
(iii) to issue a visa for reasons of urgency, although the prior
consultation in accordance with Article 22 has not been
carried out;
or
(b) when for reasons deemed justified by the consulate, a new visa is
issued for a stay during the same six-month period to an applicant
who, over this six-month period, has already used a uniform visa or
a visa with limited territorial validity allowing for a stay of three
months.
2. A visa with limited territorial validity shall be valid for the
territory of the issuing Member State. It may exceptionally be valid
for the territory of more than one Member State, subject to the
consent of each such Member State.
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3. If the applicant holds a travel document that is not recognised by
one or more, but not all Member States, a visa valid for the territory of
the Member States recognising the travel document shall be issued. If
the issuing Member State does not recognise the applicant’s travel
document, the visa issued shall only be valid for that Member State.
4. When a visa with limited territorial validity has been issued in the
cases described in paragraph 1(a), the central authorities of the issuing
Member State shall circulate the relevant information to the central
authorities of the other Member States without delay, by means of the
procedure referred to in Article 16(3) of the VIS Regulation.
5. The data set out in Article 10(1) of the VIS Regulation shall be
entered into the VIS when a decision on issuing such a visa has been
taken.
Article 26
Issuing of an airport transit visa
1. An airport transit visa shall be valid for transiting through the
international transit areas of the airports situated on the territory of
Member States.
2. Without prejudice to Article 12(a), the period of validity of the
visa shall include an additional ‘period of grace’ of 15 days.
Member States may decide not to grant such a period of grace for
reasons of public policy or because of the international relations of
any of the Member States.
3. Without prejudice to Article 12(a), multiple airport transit visas
may be issued with a period of validity of a maximum six months.
4. The following criteria in particular are relevant for taking the
decision to issue multiple airport transit visas:
(a) the applicant’s need to transit frequently and/or regularly; and
(b) the integrity and reliability of the applicant, in particular the lawful
use of previous uniform visas, visas with limited territorial validity
or airport transit visas, his economic situation in his country of
origin and his genuine intention to pursue his onward journey.
5. If the applicant is required to hold an airport transit visa in
accordance with the provisions of Article 3(2), the airport transit visa
shall be valid only for transiting through the international transit areas of
the airports situated on the territory of the Member State(s) concerned.
6. The data set out in Article 10(1) of the VIS Regulation shall be
entered into the VIS when a decision on issuing such a visa has been
taken.
Article 27
Filling in the visa sticker
1. When the visa sticker is filled in, the mandatory entries set out in
Annex VII shall be inserted and the machine-readable zone filled in, as
provided for in ICAO document 9303, Part 2.
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2. Member States may add national entries in the ‘comments’ section
of the visa sticker, which shall not duplicate the mandatory entries in
Annex VII.
3. All entries on the visa sticker shall be printed, and no manual
changes shall be made to a printed visa sticker.
4. Visa stickers may be filled in manually only in case of technical
force majeure. No changes shall be made to a manually filled in visa
sticker.
5. When a visa sticker is filled in manually in accordance with
paragraph 4 of this Article, this information shall be entered into the
VIS in accordance with Article 10(1)(k) of the VIS Regulation.
Article 28
Invalidation of a completed visa sticker
1. If an error is detected on a visa sticker which has not yet been
affixed to the travel document, the visa sticker shall be invalidated.
2. If an error is detected after the visa sticker has been affixed to the
travel document, the visa sticker shall be invalidated by drawing a cross
with indelible ink on the visa sticker and a new visa sticker shall be
affixed to a different page.
3. If an error is detected after the relevant data have been introduced
into the VIS in accordance with Article 10(1) of the VIS Regulation, the
error shall be corrected in accordance with Article 24(1) of that Regu­
lation.
Article 29
Affixing a visa sticker
1. The printed visa sticker containing the data provided for in
Article 27 and Annex VII shall be affixed to the travel document in
accordance with the provisions set out in Annex VIII.
2. Where the issuing Member State does not recognise the
applicant’s travel document, the separate sheet for affixing a visa
shall be used.
3. When a visa sticker has been affixed to the separate sheet for
affixing a visa, this information shall be entered into the VIS in
accordance with Article 10(1)(j) of the VIS Regulation.
4. Individual visas issued to persons who are included in the travel
document of the applicant shall be affixed to that travel document.
5. Where the travel document in which such persons are included is
not recognised by the issuing Member State, the individual stickers shall
be affixed to the separate sheets for affixing a visa.
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Article 30
Rights derived from an issued visa
Mere possession of a uniform visa or a visa with limited territorial
validity shall not confer an automatic right of entry.
Article 31
Information of central authorities of other Member States
1. A Member State may require that its central authorities be
informed of visas issued by consulates of other Member States to
nationals of specific third countries or to specific categories of such
nationals, except in the case of airport transit visas.
2. Member States shall notify the Commission of the introduction or
withdrawal of the requirement for such information before it becomes
applicable. This information shall also be given within local Schengen
cooperation in the jurisdiction concerned.
3. The Commission shall inform Member States of such notifications.
4. From the date referred to in Article 46 of the VIS Regulation,
information shall be transmitted in accordance with Article 16(3) of that
Regulation.
Article 32
Refusal of a visa
1. Without prejudice to Article 25(1), a visa shall be refused:
(a) if the applicant:
(i) presents a travel document which is false, counterfeit or
forged;
(ii) does not provide justification for the purpose and conditions of
the intended stay;
(iii) does not provide proof of sufficient means of subsistence, both
for the duration of the intended stay and for the return to his
country of origin or residence, or for the transit to a third
country into which he is certain to be admitted, or is not in
a position to acquire such means lawfully;
(iv) has already stayed for three months during the current sixmonth
period on the territory of the Member States on the
basis of a uniform visa or a visa with limited territorial
validity;
(v) is a person for whom an alert has been issued in the SIS for
the purpose of refusing entry;
(vi) is considered to be a threat to public policy, internal security
or public health as defined in Article 2(19) of the Schengen
Borders Code or to the international relations of any of the
Member States, in particular where an alert has been issued in
Member States’ national databases for the purpose of refusing
entry on the same grounds; or
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(vii) does not provide proof of holding adequate and valid travel
medical insurance, where applicable;
or
(b) if there are reasonable doubts as to the authenticity of the
supporting documents submitted by the applicant or the veracity
of their contents, the reliability of the statements made by the
applicant or his intention to leave the territory of the Member
States before the expiry of the visa applied for.
2. A decision on refusal and the reasons on which it is based shall be
notified to the applicant by means of the standard form set out in Annex
VI.
3. Applicants who have been refused a visa shall have the right to
appeal. Appeals shall be conducted against the Member State that has
taken the final decision on the application and in accordance with the
national law of that Member State. Member States shall provide
applicants with information regarding the procedure to be followed in
the event of an appeal, as specified in Annex VI.
4. In the cases referred to in Article 8(2), the consulate of the representing
Member State shall inform the applicant of the decision taken
by the represented Member State.
5. Information on a refused visa shall be entered into the VIS in
accordance with Article 12 of the VIS Regulation.
CHAPTER V
Modification of an issued visa
Article 33
Extension
1. The period of validity and/or the duration of stay of an issued visa
shall be extended where the competent authority of a Member State
considers that a visa holder has provided proof of force majeure or
humanitarian reasons preventing him from leaving the territory of the
Member States before the expiry of the period of validity of or the
duration of stay authorised by the visa. Such an extension shall be
granted free of charge.
2. The period of validity and/or the duration of stay of an issued visa
may be extended if the visa holder provides proof of serious personal
reasons justifying the extension of the period of validity or the duration
of stay. A fee of EUR 30 shall be charged for such an extension.
3. Unless otherwise decided by the authority extending the visa, the
territorial validity of the extended visa shall remain the same as that of
the original visa.
4. The authority competent to extend the visa shall be that of the
Member State on whose territory the third-country national is present at
the moment of applying for an extension.
5. Member States shall notify to the Commission the authorities
competent for extending visas.
6. Extension of visas shall take the form of a visa sticker.
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7. Information on an extended visa shall be entered into the VIS in
accordance with Article 14 of the VIS Regulation.
Article 34
Annulment and revocation
1. A visa shall be annulled where it becomes evident that the
conditions for issuing it were not met at the time when it was issued,
in particular if there are serious grounds for believing that the visa was
fraudulently obtained. A visa shall in principle be annulled by the
competent authorities of the Member State which issued it. A visa
may be annulled by the competent authorities of another Member
State, in which case the authorities of the Member State that issued
the visa shall be informed of such annulment.
2. A visa shall be revoked where it becomes evident that the
conditions for issuing it are no longer met. A visa shall in principle
be revoked by the competent authorities of the Member State which
issued it. A visa may be revoked by the competent authorities of another
Member State, in which case the authorities of the Member State that
issued the visa shall be informed of such revocation.
3. A visa may be revoked at the request of the visa holder. The
competent authorities of the Member States that issued the visa shall
be informed of such revocation.
4. Failure of the visa holder to produce, at the border, one or more of
the supporting documents referred to in Article 14(3), shall not automatically
lead to a decision to annul or revoke the visa.
5. If a visa is annulled or revoked, a stamp stating ‘ANNULLED’ or
‘REVOKED’ shall be affixed to it and the optically variable feature of
the visa sticker, the security feature ‘latent image effect’ as well as the
term ‘visa’ shall be invalidated by being crossed out.
6. A decision on annulment or revocation of a visa and the reasons
on which it is based shall be notified to the applicant by means of the
standard form set out in Annex VI.
7. A visa holder whose visa has been annulled or revoked shall have
the right to appeal, unless the visa was revoked at his request in
accordance with paragraph 3. Appeals shall be conducted against the
Member State that has taken the decision on the annulment or revocation
and in accordance with the national law of that Member State.
Member States shall provide applicants with information regarding the
procedure to be followed in the event of an appeal, as specified in
Annex VI.
8. Information on an annulled or a revoked visa shall be entered into
the VIS in accordance with Article 13 of the VIS Regulation.
CHAPTER VI
Visas issued at the external borders
Article 35
Visas applied for at the external border
1. In exceptional cases, visas may be issued at border crossing points
if the following conditions are satisfied:
(a) the applicant fulfils the conditions laid down in Article 5(1)(a), (c),
(d) and (e) of the Schengen Borders Code;
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(b) the applicant has not been in a position to apply for a visa in
advance and submits, if required, supporting documents
substantiating unforeseeable and imperative reasons for entry; and
(c) the applicant’s return to his country of origin or residence or transit
through States other than Member States fully implementing the
Schengen acquis is assessed as certain.
2. Where a visa is applied for at the external border, the requirement
that the applicant be in possession of travel medical insurance may be
waived when such travel medical insurance is not available at that
border crossing point or for humanitarian reasons.
3. A visa issued at the external border shall be a uniform visa,
entitling the holder to stay for a maximum duration of 15 days,
depending on the purpose and conditions of the intended stay. In the
case of transit, the length of the authorised stay shall correspond to the
time necessary for the purpose of the transit.
4. Where the conditions laid down in Article 5(1)(a), (c), (d) and (e)
of the Schengen Borders Code are not fulfilled, the authorities
responsible for issuing the visa at the border may issue a visa with
limited territorial validity, in accordance with Article 25(1)(a) of this
Regulation, for the territory of the issuing Member State only.
5. A third-country national falling within a category of persons for
whom prior consultation is required in accordance with Article 22 shall,
in principle, not be issued a visa at the external border.
However, a visa with limited territorial validity for the territory of the
issuing Member State may be issued at the external border for such
persons in exceptional cases, in accordance with Article 25(1)(a).
6. In addition to the reasons for refusing a visa as provided for in
Article 32(1) a visa shall be refused at the border crossing point if the
conditions referred to in paragraph 1(b) of this Article are not met.
7. The provisions on justification and notification of refusals and the
right of appeal set out in Article 32(3) and Annex VI shall apply.
Article 36
Visas issued to seafarers in transit at the external border
1. A seafarer who is required to be in possession of a visa when
crossing the external borders of the Member States may be issued with a
visa for the purpose of transit at the border where:
(a) he fulfils the conditions set out in Article 35(1); and
(b) he is crossing the border in question in order to embark on, reembark
on or disembark from a ship on which he will work or has
worked as a seafarer.
2. Before issuing a visa at the border to a seafarer in transit, the
competent national authorities shall comply with the rules set out in
Annex IX, Part 1, and make sure that the necessary information
concerning the seafarer in question has been exchanged by means of
a duly completed form for seafarers in transit, as set out in Annex IX,
Part 2.
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3. This Article shall apply without prejudice to Article 35(3), (4) and
(5).
TITLE IV
ADMINISTRATIVE MANAGEMENT AND ORGANISATION
Article 37
Organisation of visa sections
1. Member States shall be responsible for organising the visa sections
of their consulates.
In order to prevent any decline in the level of vigilance and to protect
staff from being exposed to pressure at local level, rotation schemes for
staff dealing directly with applicants shall be set up, where appropriate.
Particular attention shall be paid to clear work structures and a distinct
allocation/division of responsibilities in relation to the taking of final
decisions on applications. Access to consultation of the VIS and the SIS
and other confidential information shall be restricted to a limited
number of duly authorised staff. Appropriate measures shall be taken
to prevent unauthorised access to such databases.
2. The storage and handling of visa stickers shall be subject to
adequate security measures to avoid fraud or loss. Each consulate
shall keep an account of its stock of visa stickers and register how
each visa sticker has been used.
3. Member States’ consulates shall keep archives of applications.
Each individual file shall contain the application form, copies of
relevant supporting documents, a record of checks made and the
reference number of the visa issued, in order for staff to be able to
reconstruct, if need be, the background for the decision taken on the
application.
Individual application files shall be kept for a minimum of two years
from the date of the decision on the application as referred to in
Article 23(1).
Article 38
Resources for examining applications and monitoring of consulates
1. Member States shall deploy appropriate staff in sufficient numbers
to carry out the tasks relating to the examining of applications, in such a
way as to ensure reasonable and harmonised quality of service to the
public.
2. Premises shall meet appropriate functional requirements of
adequacy and allow for appropriate security measures.
3. Member States’ central authorities shall provide adequate training
to both expatriate staff and locally employed staff and shall be
responsible for providing them with complete, precise and up-to-date
information on the relevant Community and national law.
4. Member States’ central authorities shall ensure frequent and
adequate monitoring of the conduct of examination of applications
and take corrective measures when deviations from the provisions of
this Regulation are detected.
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Article 39
Conduct of staff
1. Member States’ consulates shall ensure that applicants are received
courteously.
2. Consular staff shall, in the performance of their duties, fully
respect human dignity. Any measures taken shall be proportionate to
the objectives pursued by such measures.
3. While performing their tasks, consular staff shall not discriminate
against persons on grounds of sex, racial or ethnic origin, religion or
belief, disability, age or sexual orientation.
Article 40
Forms of cooperation
1. Each Member State shall be responsible for organising the
procedures relating to applications. In principle, applications shall be
lodged at a consulate of a Member State.
2. Member States shall:
(a) equip their consulates and authorities responsible for issuing visas at
the borders with the required material for the collection of biometric
identifiers, as well as the offices of their honorary consuls,
whenever they make use of them, to collect biometric identifiers
in accordance with Article 42; and/or
(b) cooperate with one or more other Member States, within the
framework of local Schengen cooperation or by other appropriate
contacts, in the form of limited representation, co-location, or a
Common Application Centre in accordance with Article 41.
3. In particular circumstances or for reasons relating to the local
situation, such as where:
(a) the high number of applicants does not allow the collection of
applications and of data to be organised in a timely manner and
in decent conditions; or
(b) it is not possible to ensure a good territorial coverage of the third
country concerned in any other way;
and where the forms of cooperation referred to in paragraph 2(b) prove
not to be appropriate for the Member State concerned, a Member State
may, as a last resort, cooperate with an external service provider in
accordance with Article 43.
4. Without prejudice to the right to call the applicant for a personal
interview, as provided for in Article 21(8), the selection of a form of
organisation shall not lead to the applicant being required to appear in
person at more than one location in order to lodge an application.
5. Member States shall notify to the Commission how they intend to
organise the procedures relating to applications in each consular
location.
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Article 41
Cooperation between Member States
1. Where ‘co-location’ is chosen, staff of the consulates of one or
more Member States shall carry out the procedures relating to applications
(including the collection of biometric identifiers) addressed to
them at the consulate of another Member State and share the equipment
of that Member State. The Member States concerned shall agree on the
duration of and conditions for the termination of the co-location as well
as the proportion of the visa fee to be received by the Member State
whose consulate is being used.
2. Where ‘Common Application Centres’ are established, staff of the
consulates of two or more Member States shall be pooled in one
building in order for applicants to lodge applications (including
biometric identifiers). Applicants shall be directed to the Member
State competent for examining and deciding on the application.
Member States shall agree on the duration of and conditions for the
termination of such cooperation as well as the cost-sharing among the
participating Member States. One Member State shall be responsible for
contracts in relation to logistics and diplomatic relations with the host
country.
3. In the event of termination of cooperation with other Member
States, Member States shall assure the continuity of full service.
Article 42
Recourse to honorary consuls
1. Honorary consuls may also be authorised to perform some or all
of the tasks referred to in Article 43(6). Adequate measures shall be
taken to ensure security and data protection.
2. Where the honorary consul is not a civil servant of a Member
State, the performance of those tasks shall comply with the requirements
set out in Annex X, except for the provisions in point D(c) of that
Annex.
3. Where the honorary consul is a civil servant of a Member State,
the Member State concerned shall ensure that requirements comparable
to those which would apply if the tasks were performed by its consulate
are applied.
Article 43
Cooperation with external service providers
1. Member States shall endeavour to cooperate with an external
service provider together with one or more Member States, without
prejudice to public procurement and competition rules.
2. Cooperation with an external service provider shall be based on a
legal instrument that shall comply with the requirements set out in
Annex X.
3. Member States shall, within the framework of local Schengen
cooperation, exchange information about the selection of external
service providers and the establishment of the terms and conditions of
their respective legal instruments.
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4. The examination of applications, interviews (where appropriate),
the decision on applications and the printing and affixing of visa
stickers shall be carried out only by the consulate.
5. External service providers shall not have access to the VIS under
any circumstances. Access to the VIS shall be reserved exclusively to
duly authorised staff of consulates.
6. An external service provider may be entrusted with the
performance of one or more of the following tasks:
(a) providing general information on visa requirements and application
forms;
(b) informing the applicant of the required supporting documents, on
the basis of a checklist;
(c) collecting data and applications (including collection of biometric
identifiers) and transmitting the application to the consulate;
(d) collecting the visa fee;
(e) managing the appointments for appearance in person at the
consulate or at the external service provider;
(f) collecting the travel documents, including a refusal notification if
applicable, from the consulate and returning them to the applicant.
7. When selecting an external service provider, the Member State(s)
concerned shall scrutinise the solvency and reliability of the company,
including the necessary licences, commercial registration, company
statutes, bank contracts, and ensure that there is no conflict of interests.
8. The Member State(s) concerned shall ensure that the external
service provider selected complies with the terms and conditions
assigned to it in the legal instrument referred to in paragraph 2.
9. The Member State(s) concerned shall remain responsible for
compliance with data protection rules for the processing of data and
shall be supervised in accordance with Article 28 of Directive 95/46/EC.
Cooperation with an external service provider shall not limit or exclude
any liability arising under the national law of the Member State(s)
concerned for breaches of obligations with regard to the personal data
of applicants or the performance of one or more of the tasks referred to
in paragraph 6. This provision is without prejudice to any action which
may be taken directly against the external service provider under the
national law of the third country concerned.
10. The Member State(s) concerned shall provide training to the
external service provider, corresponding to the knowledge needed to
offer an appropriate service and sufficient information to applicants.
11. The Member State(s) concerned shall closely monitor the implementation
of the legal instrument referred to in paragraph 2, including:
(a) the general information on visa requirements and application forms
provided by the external service provider to applicants;
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(b) all the technical and organisational security measures required to
protect personal data against accidental or unlawful destruction or
accidental loss, alteration, unauthorised disclosure or access, in
particular where the cooperation involves the transmission of files
and data to the consulate of the Member State(s) concerned, and all
other unlawful forms of processing personal data;
(c) the collection and transmission of biometric identifiers;
(d) the measures taken to ensure compliance with data protection
provisions.
To this end, the consulate(s) of the Member State(s) concerned shall, on
a regular basis, carry out spot checks on the premises of the external
service provider.
12. In the event of termination of cooperation with an external
service provider, Member States shall ensure the continuity of full
service.
13. Member States shall provide the Commission with a copy of the
legal instrument referred to in paragraph 2.
Article 44
Encryption and secure transfer of data
1. In the case of representation arrangements between Member States
and cooperation of Member States with an external service provider and
recourse to honorary consuls, the represented Member State(s) or the
Member State(s) concerned shall ensure that the data are fully
encrypted, whether electronically transferred or physically transferred
on an electronic storage medium from the authorities of the representing
Member State to the authorities of the represented Member State(s) or
from the external service provider or from the honorary consul to the
authorities of the Member State(s) concerned.
2. In third countries which prohibit encryption of data to be electronically
transferred from the authorities of the representing Member
State to the authorities of the represented Member State(s) or from the
external service provider or from the honorary consul to the authorities
of the Member State(s) concerned, the represented Members State(s) or
the Member State(s) concerned shall not allow the representing Member
State or the external service provider or the honorary consul to transfer
data electronically.
In such a case, the represented Member State(s) or the Member State(s)
concerned shall ensure that the electronic data are transferred physically
in fully encrypted form on an electronic storage medium from the
authorities of the representing Member State to the authorities of the
represented Member State(s) or from the external service provider or
from the honorary consul to the authorities of the Member State(s)
concerned by a consular officer of a Member State or, where such a
transfer would require disproportionate or unreasonable measures to be
taken, in another safe and secure way, for example by using established
operators experienced in transporting sensitive documents and data in
the third country concerned.
3. In all cases the level of security for the transfer shall be adapted to
the sensitive nature of the data.
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4. The Member States or the Community shall endeavour to reach
agreement with the third countries concerned with the aim of lifting the
prohibition against encryption of data to be electronically transferred
from the authorities of the representing Member State to the authorities
of the represented Member State(s) or from the external service provider
or from the honorary consul to the authorities of the Member State(s)
concerned.
Article 45
Member States’ cooperation with commercial intermediaries
1. Member States may cooperate with commercial intermediaries for
the lodging of applications, except for the collection of biometric
identifiers.
2. Such cooperation shall be based on the granting of an accreditation
by Member States’ relevant authorities. The accreditation shall, in
particular, be based on the verification of the following aspects:
(a) the current status of the commercial intermediary: current licence,
the commercial register, contracts with banks;
(b) existing contracts with commercial partners based in the Member
States offering accommodation and other package tour services;
(c) contracts with transport companies, which must include an outward
journey, as well as a guaranteed and fixed return journey.
3. Accredited commercial intermediaries shall be monitored regularly
by spot checks involving personal or telephone interviews with
applicants, verification of trips and accommodation, verification that
the travel medical insurance provided is adequate and covers individual
travellers, and wherever deemed necessary, verification of the
documents relating to group return.
4. Within local Schengen cooperation, information shall be
exchanged on the performance of the accredited commercial intermediaries
concerning irregularities detected and refusal of applications
submitted by commercial intermediaries, and on detected forms of travel
document fraud and failure to carry out scheduled trips.
5. Within local Schengen cooperation, lists shall be exchanged of
commercial intermediaries to which accreditation has been given by
each consulate and from which accreditation has been withdrawn,
together with the reasons for any such withdrawal.
Each consulate shall make sure that the public is informed about the list
of accredited commercial intermediaries with which it cooperates.
Article 46
Compilation of statistics
Member States shall compile annual statistics on visas, in accordance
with the table set out in Annex XII. These statistics shall be submitted
by 1 March for the preceding calendar year.
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Article 47
Information to the general public
1. Member States’ central authorities and consulates shall provide the
general public with all relevant information in relation to the application
for a visa, in particular:
(a) the criteria, conditions and procedures for applying for a visa;
(b) the means of obtaining an appointment, if applicable;
(c) where the application may be submitted (competent consulate,
Common Application Centre or external service provider);
(d) accredited commercial intermediaries;
(e) the fact that the stamp as provided for in Article 20 has no legal
implications;
(f) the time limits for examining applications provided for in
Article 23(1), (2) and (3);
(g) the third countries whose nationals or specific categories of whose
nationals are subject to prior consultation or information;
(h) that negative decisions on applications must be notified to the
applicant, that such decisions must state the reasons on which
they are based and that applicants whose applications are refused
have a right to appeal, with information regarding the procedure to
be followed in the event of an appeal, including the competent
authority, as well as the time limit for lodging an appeal;
(i) that mere possession of a visa does not confer an automatic right of
entry and that the holders of visa are requested to present proof that
they fulfil the entry conditions at the external border, as provided
for in Article 5 of the Schengen Borders Code.
2. The representing and represented Member State shall inform the
general public about representation arrangements as referred to in
Article 8 before such arrangements enter into force.
TITLE V
LOCAL SCHENGEN COOPERATION
Article 48
Local Schengen cooperation between Member States’ consulates
1. In order to ensure a harmonised application of the common visa
policy taking into account, where appropriate, local circumstances,
Member States’ consulates and the Commission shall cooperate within
each jurisdiction and assess the need to establish in particular:
(a) a harmonised list of supporting documents to be submitted by
applicants, taking into account Article 14 and Annex II;
(b) common criteria for examining applications in relation to
exemptions from paying the visa fee in accordance with
Article 16(5) and matters relating to the translation of the application
form in accordance with Article 11(5);
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(c) an exhaustive list of travel documents issued by the host country,
which shall be updated regularly.
If in relation to one or more of the points (a) to (c), the assessment
within local Schengen cooperation confirms the need for a local
harmonised approach, measures on such an approach shall be adopted
pursuant to the procedure referred to in Article 52(2).
2. Within local Schengen cooperation a common information sheet
shall be established on uniform visas and visas with limited territorial
validity and airport transit visas, namely, the rights that the visa implies
and the conditions for applying for it, including, where applicable, the
list of supporting documents as referred to in paragraph 1(a).
3. The following information shall be exchanged within local
Schengen cooperation:
(a) monthly statistics on uniform visas, visas with limited territorial
validity, and airport transit visas issued, as well as the number of
visas refused;
(b) with regard to the assessment of migratory and/or security risks,
information on:
(i) the socioeconomic structure of the host country;
(ii) sources of information at local level, including social security,
health insurance, fiscal registers and entry-exit registrations;
(iii) the use of false, counterfeit or forged documents;
(iv) illegal immigration routes;
(v) refusals;
(c) information on cooperation with transport companies;
(d) information on insurance companies providing adequate travel
medical insurance, including verification of the type of coverage
and possible excess amount.
4. Local Schengen cooperation meetings to deal specifically with
operational issues in relation to the application of the common visa
policy shall be organised regularly among Member States and the
Commission. These meetings shall be convened within the jurisdiction
by the Commission, unless otherwise agreed at the request of the
Commission.
Single-topic meetings may be organised and sub-groups set up to study
specific issues within local Schengen cooperation.
5. Summary reports of local Schengen cooperation meetings shall be
drawn up systematically and circulated locally. The Commission may
delegate the drawing up of the reports to a Member State. The
consulates of each Member State shall forward the reports to their
central authorities.
On the basis of these reports, the Commission shall draw up an annual
report within each jurisdiction to be submitted to the European
Parliament and the Council.
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6. Representatives of the consulates of Member States not applying
the Community acquis in relation to visas, or of third countries, may on
an ad hoc basis be invited to participate in meetings for the exchange of
information on issues relating to visas.
TITLE VI
FINAL PROVISIONS
Article 49
Arrangements in relation to the Olympic Games and Paralympic
Games
Member States hosting the Olympic Games and Paralympic Games shall
apply the specific procedures and conditions facilitating the issuing of
visas set out in Annex XI.
Article 50
Amendments to the Annexes
Measures designed to amend non-essential elements of this Regulation
and amending Annexes I, II, III, IV, V, VI, VII, VIII and XII shall be
adopted in accordance with the regulatory procedure with scrutiny
referred to in Article 52(3).
Article 51
Instructions on the practical application of the Visa Code
Operational instructions on the practical application of the provisions of
this Regulation shall be drawn up in accordance with the procedure
referred to in Article 52(2).
Article 52
Committee procedure
1. The Commission shall be assisted by a committee (the Visa
Committee).
2. Where reference is made to this paragraph, Articles 5 and 7 of
Decision 1999/468/EC shall apply, having regard to the provisions of
Article 8 thereof and provided that the implementing measures adopted
in accordance with this procedure do not modify the essential provisions
of this Regulation.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be
three months.
3. Where reference is made to this paragraph, Articles 5a(1) to (4)
and 7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.
Article 53
Notification
1. Member States shall notify the Commission of:
(a) representation arrangements referred to in Article 8;
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(b) third countries whose nationals are required by individual Member
States to hold an airport transit visa when passing through the international
transit areas of airports situated on their territory, as
referred to in Article 3;
(c) the national form for proof of sponsorship and/or private accommodation
referred to in Article 14(4), if applicable;
(d) the list of third countries for which prior consultation referred to in
Article 22(1) is required;
(e) the list of third countries for which information referred to in
Article 31(1) is required;
(f) the additional national entries in the ‘comments’ section of the visa
sticker, as referred to in Article 27(2);
(g) authorities competent for extending visas, as referred to in
Article 33(5);
(h) the forms of cooperation chosen as referred to in Article 40;
(i) statistics compiled in accordance with Article 46 and Annex XII.
2. The Commission shall make the information notified pursuant to
paragraph 1 available to the Member States and the public via a
constantly updated electronic publication.
Article 54
Amendments to Regulation (EC) No 767/2008
Regulation (EC) No 767/2008 is hereby amended as follows:
1. Article 4(1) shall be amended as follows:
(a) point (a) shall be replaced by the following:
‘(a) “uniform visa” as defined in Article 2(3) of Regulation
(EC) No 810/2009 of the European Parliament and of
the Council of 13 July 2009 establishing a Community
code on Visas (Visa Code) (*);
___________
(*) OJ L 243, 15.9.2009, p. 1.’;
(b) point (b) shall be deleted;
(c) point (c) shall be replaced by the following:
‘(c) “airport transit visa” as defined in Article 2(5) of Regulation
(EC) No 810/2009;’;
(d) point (d) shall be replaced by the following:
‘(d) “visa with limited territorial validity” as defined in
Article 2(4) of Regulation (EC) No 810/2009;’;
(e) point (e) shall be deleted;
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2. in Article 8(1), the words ‘On receipt of an application’, shall be
replaced by the following:
‘When the application is admissible according to Article 19 of
Regulation (EC) No 810/2009’;
3. Article 9 shall be amended as follows:
(a) the heading shall be replaced by the following:
‘Data to be entered on application’;
(b) paragraph 4 shall be amended as follows:
(i) point (a) shall be replaced by the following:
‘(a) surname (family name), surname at birth (former
family name(s)), first name(s) (given name(s)); date
of birth, place of birth, country of birth, sex;’;
(ii) point (e) shall be deleted;
(iii) point (g) shall be replaced by the following:
‘(g) Member State(s) of destination and duration of the
intended stay or transit;’;
(iv) point (h) shall be replaced by the following:
‘(h) main purpose(s) of the journey;’;
(v) point (i) shall be replaced by the following:
‘(i) intended date of arrival in the Schengen area and
intended date of departure from the Schengen area;’;
(vi) point (j) shall be replaced by the following:
‘(j) Member State of first entry;’;
(vii) point (k) shall be replaced by the following:
‘(k) the applicant’s home address;’;
(viii) in point (l), the word ‘school’ shall be replaced by:
‘educational establishment’;
(ix) in point (m), the words ‘father and mother’ shall be
replaced by ‘parental authority or legal guardian’;
4. the following point shall be added to Article 10(1):
‘(k) if applicable, the information indicating that the visa sticker
has been filled in manually.’;
5. in Article 11, the introductory paragraph shall be replaced by the
following:
‘Where the visa authority representing another Member State
discontinues the examination of the application, it shall add the
following data to the application file:’;
6. Article 12 shall be amended as follows:
(a) in paragraph 1, point (a) shall be replaced by the following:
‘(a) status information indicating that the visa has been refused
and whether that authority refused it on behalf of another
Member State;’;
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(b) paragraph 2 shall be replaced by the following:
‘2. The application file shall also indicate the ground(s) for
refusal of the visa, which shall be one or more of the following:
(a) the applicant:
(i) presents a travel document which is false, counterfeit
or forged;
(ii) does not provide justification for the purpose and
conditions of the intended stay;
(iii) does not provide proof of sufficient means of
subsistence, both for the duration of the intended
stay and for the return to his country of origin or
residence, or for the transit to a third country into
which he is certain to be admitted, or is not in a
position to acquire such means lawfully;
(iv) has already stayed for three months during the current
six-month period on the territory of the Member
States on a basis of a uniform visa or a visa with
limited territorial validity;
(v) is a person for whom an alert has been issued in the
SIS for the purpose of refusing entry;
(vi) is considered to be a threat to public policy, internal
security or public health as defined in Article 2(19) of
the Schengen Borders Code or to the international
relations of any of the Member States, in particular
where an alert has been issued in Member States’
national databases for the purpose of refusing entry
on the same grounds;
(vii) does not provide proof of holding adequate and valid
travel medical insurance, where applicable;
(b) the information submitted regarding the justification for the
purpose and conditions of the intended stay was not
reliable;
(c) the applicant’s intention to leave the territory of the
Member States before the expiry of the visa could not be
ascertained;
(d) sufficient proof that the applicant has not been in a position
to apply for a visa in advance justifying application for a
visa at the border was not provided.’;
7. Article 13 shall be replaced by the following:
‘Article 13
Data to be added for a visa annulled or revoked
1. Where a decision has been taken to annul or to revoke a visa,
the visa authority that has taken the decision shall add the following
data to the application file:
(a) status information indicating that the visa has been annulled or
revoked;
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(b) authority that annulled or revoked the visa, including its
location;
(c) place and date of the decision.
2. The application file shall also indicate the ground(s) for
annulment or revocation, which shall be:
(a) one or more of the ground(s) listed in Article 12(2);
(b) the request of the visa holder to revoke the visa.’;
8. Article 14 shall be amended as follows:
(a) paragraph 1 shall be amended as follows:
(i) the introductory paragraph shall be replaced by the
following:
‘1. Where a decision has been taken to extend the
period of validity and/or the duration of stay of an
issued visa, the visa authority which extended the visa
shall add the following data to the application file:’;
(ii) point (d) shall be replaced by the following:
‘(d) the number of the visa sticker of the extended visa;’;
(iii) point (g) shall be replaced by the following:
‘(g) the territory in which the visa holder is entitled to
travel, if the territorial validity of the extended visa
differs from that of the original visa;’;
(b) in paragraph 2, point (c) shall be deleted;
9. in Article 15(1), the words ‘extend or shorten the validity of the
visa’ shall be replaced by ‘or extend the visa’;
10. Article 17 shall be amended as follows:
(a) point 4 shall be replaced by the following:
‘4. Member State of first entry;’;
(b) point 6 shall be replaced by the following:
‘6. the type of visa issued;’;
(c) point 11 shall be replaced by the following:
‘11. main purpose(s) of the journey;’;
11. in Article 18(4)(c), Article 19(2)(c), Article 20(2)(d),
Article 22(2)(d), the words ‘or shortened’ shall be deleted;
12. in Article 23(1)(d), the word ‘shortened’ shall be deleted.
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Article 55
Amendments to Regulation (EC) No 562/2006
Annex V, Part A of Regulation (EC) No 562/2006 is hereby amended
as follows:
(a) point 1(c), shall be replaced by the following:
‘(c) annul or revoke the visas, as appropriate, in accordance with
the conditions laid down in Article 34 of Regulation (EC) No
810/2009 of the European Parliament and of the Council of
13 July 2009 establishing a Community code on visas (Visa
Code) (*);
___________
(*) OJ L 243, 15.9.2009, p. 1.’;
(b) point 2 shall be deleted.
Article 56
Repeals
1. Articles 9 to 17 of the Convention implementing the Schengen
Agreement of 14 June 1985 shall be repealed.
2. The following shall be repealed:
(a) Decision of the Schengen Executive Committee of 28 April 1999 on
the definitive versions of the Common Manual and the Common
Consular Instructions (SCH/Com-ex (99) 13 (the Common Consular
Instructions, including the Annexes);
(b) Decisions of the Schengen Executive Committee of 14 December
1993 extending the uniform visa (SCH/Com-ex (93) 21) and on the
common principles for cancelling, rescinding or shortening the
length of validity of the uniform visa (SCH/Com-ex (93) 24),
Decision of the Schengen Executive Committee of 22 December
1994 on the exchange of statistical information on the issuing of
uniform visas (SCH/Com-ex (94) 25), Decision of the Schengen
Executive Committee of 21 April 1998 on the exchange of statistics
on issued visas (SCH/Com-ex (98) 12) and Decision of the
Schengen Executive Committee of 16 December 1998 on the introduction
of a harmonised form providing proof of invitation, sponsorship
and accommodation (SCH/Com-ex (98) 57);
(c) Joint Action 96/197/JHA of 4 March 1996 on airport transit
arrangements (1);
(d) Council Regulation (EC) No 789/2001 of 24 April 2001 reserving
to the Council implementing powers with regard to certain detailed
provisions and practical procedures for examining visa applications
(2);
(e) Council Regulation (EC) No 1091/2001 of 28 May 2001 on
freedom of movement with a long-stay visa (3);
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(1) OJ L 63, 13.3.1996, p. 8.
(2) OJ L 116, 26.4.2001, p. 2.
(3) OJ L 150, 6.6.2001, p. 4.
(f) Council Regulation (EC) No 415/2003 of 27 February 2003 on the
issue of visas at the border, including the issue of such visas to
seamen in transit (1);
(g) Article 2 of Regulation (EC) No 390/2009 of the European
Parliament and of the Council of 23 April 2009 amending the
Common Consular Instructions on visas for diplomatic and
consular posts in relation to the introduction of biometrics
including provisions on the organisation of the reception and
processing of visa applications (2).
3. References to repealed instruments shall be construed as references
to this Regulation and read in accordance with the correlation table in
Annex XIII.
Article 57
Monitoring and evaluation
1. Two years after all the provisions of this Regulation have become
applicable, the Commission shall produce an evaluation of its application.
This overall evaluation shall include an examination of the
results achieved against objectives and of the implementation of the
provisions of this Regulation, without prejudice to the reports referred
to in paragraph 3.
2. The Commission shall transmit the evaluation referred to in
paragraph 1 to the European Parliament and the Council. On the
basis of the evaluation, the Commission shall submit, if necessary,
appropriate proposals with a view to amending this Regulation.
3. The Commission shall present, three years after the VIS is brought
into operation and every four years thereafter, a report to the European
Parliament and to the Council on the implementation of Articles 13, 17,
40 to 44 of this Regulation, including the implementation of the
collection and use of biometric identifiers, the suitability of the ICAO
standard chosen, compliance with data protection rules, experience with
external service providers with specific reference to the collection of
biometric data, the implementation of the 59-month rule for the copying
of fingerprints and the organisation of the procedures relating to applications.
The report shall also include, on the basis of Article 17(12),
(13) and (14) and of Article 50(4) of the VIS Regulation, the cases in
which fingerprints could factually not be provided or were not required
to be provided for legal reasons, compared with the number of cases in
which fingerprints were taken. The report shall include information on
cases in which a person who could factually not provide fingerprints
was refused a visa. The report shall be accompanied, where necessary,
by appropriate proposals to amend this Regulation.
4. The first of the reports referred to in paragraph 3 shall also address
the issue of the sufficient reliability for identification and verification
purposes of fingerprints of children under the age of 12 and, in
particular, how fingerprints evolve with age, on the basis of the
results of a study carried out under the responsibility of the
Commission.
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(1) OJ L 64, 7.3.2003, p. 1.
(2) OJ L 131, 28.5.2009, p. 1.
Article 58
Entry into force
1. This Regulation shall enter into force on the 20th day following its
publication in the Official Journal of the European Union.
2. It shall apply from 5 April 2010.
3. Article 52 and Article 53(1)(a) to (h) and (2) shall apply from
5 October 2009.
4. As far as the Schengen Consultation Network (Technical Specifications)
is concerned, Article 56(2)(d) shall apply from the date referred
to in Article 46 of the VIS Regulation.
5. Article 32(2) and (3), Article 34(6) and (7) and Article 35(7) shall
apply from 5 April 2011.
This Regulation shall be binding in its entirety and directly applicable in
the Member States in accordance with the Treaty establishing the
European Community.
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ANNEX I
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ANNEX II
Non-exhaustive list of supporting documents
The supporting documents referred to in Article 14, to be submitted by visa
applicants may include the following:
A. DOCUMENTATION RELATING TO THE PURPOSE OF THE JOURNEY
1. for business trips:
(a) an invitation from a firm or an authority to attend meetings,
conferences or events connected with trade, industry or work;
(b) other documents which show the existence of trade relations or
relations for work purposes;
(c) entry tickets for fairs and congresses, if appropriate;
(d) documents proving the business activities of the company;
(e) documents proving the applicant’s employment status in the company;
2. for journeys undertaken for the purposes of study or other types of
training:
(a) a certificate of enrolment at an educational establishment for the
purposes of attending vocational or theoretical courses within the
framework of basic and further training;
(b) student cards or certificates of the courses to be attended;
3. for journeys undertaken for the purposes of tourism or for private reasons:
(a) documents relating to accommodation:
— an invitation from the host if staying with one,
— a document from the establishment providing accommodation or
any other appropriate document indicating the accommodation
envisaged;
(b) documents relating to the itinerary:
— confirmation of the booking of an organised trip or any other
appropriate document indicating the envisaged travel plans,
— in the case of transit: visa or other entry permit for the third
country of destination; tickets for onward journey;
4. for journeys undertaken for political, scientific, cultural, sports or religious
events or other reasons:
— invitation, entry tickets, enrolments or programmes stating (wherever
possible) the name of the host organisation and the length of stay or
any other appropriate document indicating the purpose of the journey;
5. for journeys of members of official delegations who, following an official
invitation addressed to the government of the third country concerned,
participate in meetings, consultations, negotiations or exchange
programmes, as well as in events held in the territory of a Member
State by intergovernmental organisations:
— a letter issued by an authority of the third country concerned
confirming that the applicant is a member of the official delegation
travelling to a Member State to participate in the abovementioned
events, accompanied by a copy of the official invitation;
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6. for journeys undertaken for medical reasons:
— an official document of the medical institution confirming necessity for
medical care in that institution and proof of sufficient financial means
to pay for the medical treatment.
B. DOCUMENTATION ALLOWING FOR THE ASSESSMENT OF THE
APPLICANT’S INTENTION TO LEAVE THE TERRITORY OF THE
MEMBER STATES
1. reservation of or return or round ticket;
2. proof of financial means in the country of residence;
3. proof of employment: bank statements;
4. proof of real estate property;
5. proof of integration into the country of residence: family ties; professional
status.
C. DOCUMENTATION IN RELATION TO THE APPLICANT’S FAMILY
SITUATION
1. consent of parental authority or legal guardian (when a minor does not
travel with them);
2. proof of family ties with the host/inviting person.
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ANNEX III
UNIFORM FORMAT AND USE OF THE STAMP INDICATING THAT A
VISA APPLICATION IS ADMISSIBLE
… visa … (1)
xx/xx/xxxx (2) … (3)
Example:
C visa FR
22.4.2009 Consulat de France
Djibouti
The stamp shall be placed on the first available page that contains no entries or
stamps in the travel document.
(1) Code of the Member State examining the application. The codes as set out in Annex VII
point 1.1 are used.
(2) Date of application (eight digits: xx day, xx month, xxxx year).
(3) Authority examining the visa application.
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ANNEX IV
Common list of third countries listed in Annex I to Regulation (EC) No
539/2001, whose nationals are required to be in possession of an airport
transit visa when passing through the international transit area of airports
situated on the territory of the Member States
AFGHANISTAN
BANGLADESH
DEMOCRATIC REPUBLIC OF THE CONGO
ERITREA
ETHIOPIA
GHANA
IRAN
IRAQ
NIGERIA
PAKISTAN
SOMALIA
SRI LANKA
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ANNEX V
LIST OF RESIDENCE PERMITS ENTITLING THEIR HOLDERS TO
TRANSIT THROUGH THE AIRPORTS OF MEMBER STATES
WITHOUT BEING REQUIRED TO HOLD AN AIRPORT TRANSIT
VISA
ANDORRA:
— Tarjeta provisional de estancia y de trabajo (provisional residence and work
permit) (white). These are issued to seasonal workers; the period of validity
depends on the duration of employment, but never exceeds six months. This
permit is not renewable,
— Tarjeta de estancia y de trabajo (residence and work permit) (white). This
permit is issued for six months and may be renewed for another year,
— Tarjeta de estancia (residence permit) (white). This permit is issued for six
months and may be renewed for another year,
— Tarjeta temporal de residencia (temporary residence permit) (pink). This
permit is issued for one year and may be renewed twice, each time for
another year,
— Tarjeta ordinaria de residencia (ordinary residence permit) (yellow). This
permit is issued for three years and may be renewed for another three years,
— Tarjeta privilegiada de residencia (special residence permit) (green). This
permit is issued for five years and is renewable, each time for another five
years,
— Autorización de residencia (residence authorisation) (green). This permit is
issued for one year and is renewable, each time for another three years,
— Autorización temporal de residencia y de trabajo (temporary residence and
work authorisation) (pink). This permit is issued for two years and may be
renewed for another two years,
— Autorización ordinaria de residencia y de trabajo (ordinary residence and
work authorisation) (yellow). This permit is issued for five years,
— Autorización privilegiada de residencia y de trabajo (special residence and
work authorisation) (green). This permit is issued for 10 years and is
renewable, each time for another 10 years.
CANADA:
— Permanent resident card (plastic card).
JAPAN:
— Re-entry permit to Japan.
SAN MARINO:
— Permesso di soggiorno ordinario (validità illimitata) (ordinary residence
permit (no expiry date)),
— Permesso di soggiorno continuativo speciale (validità illimitata) (special
permanent residence permit (no expiry date)),
— Carta d’identità de San Marino (validità illimitata) (San Marino identity card
(no expiry date)).
UNITED STATES OF AMERICA:
— Form I-551 permanent resident card (valid for 2 to 10 years),
— Form I-551 Alien registration receipt card (valid for 2 to 10 years),
— Form I-551 Alien registration receipt card (no expiry date),
— Form I-327 Re-entry document (valid for two years — issued to holders of a
I-551),
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— Resident alien card (valid for 2 or 10 years or no expiry date. This document
guarantees the holder’s return only if his stay outside the USA has not
exceeded one year),
— Permit to re-enter (valid for two years. This document guarantees the holder’s
return only if his stay outside the USA has not exceeded two years),
— Valid temporary residence stamp in a valid passport (valid for one year from
the date of issue).
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ANNEX VI
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ANNEX VII
FILLING IN THE VISA STICKER
1. Mandatory entries section
1.1. ‘VALID FOR’ heading:
This heading indicates the territory in which the visa holder is entitled to
travel.
This heading may be completed in one of the following ways only:
(a) Schengen States;
(b) Schengen State or Schengen States to whose territory the validity of the
visa is limited (in this case the following abbreviations are used):
BE BELGIUM
CZ CZECH REPUBLIC
DK DENMARK
DE GERMANY
EE ESTONIA
GR GREECE
ES SPAIN
FR FRANCE
IT ITALY
LV LATVIA
LT LITHUANIA
LU LUXEMBOURG
HU HUNGARY
MT MALTA
NL NETHERLANDS
AT AUSTRIA
PL POLAND
PT PORTUGAL
SI SLOVENIA
SK SLOVAKIA
FI FINLAND
SE SWEDEN
IS ICELAND
NO NORWAY
CH SWITZERLAND
1.2. When the sticker is used to issue a uniform visa this heading is filled in
using the words ‘Schengen States’, in the language of the issuing Member
State.
1.3. When the sticker is used to issue a visa with limited territorial validity
pursuant to Article 25(1) of this Regulation this heading is filled in with
the name(s) of the Member State(s) to which the visa holder’s stay is
limited, in the language of the issuing Member State.
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1.4. When the sticker is used to issue a visa with limited territorial validity
pursuant to Article 25(3) of this Regulation, the following options for the
codes to be entered may be used:
(a) entry of the codes for the Member States concerned;
(b) entry of the words ‘Schengen States’, followed in brackets by the minus
sign and the codes of the Member States for whose territory the visa is
not valid;
(c) in case the ‘valid for’ field is not sufficient for entering all codes for the
Member States (not) recognising the travel document concerned the font
size of the letters used is reduced.
2. ‘FROM ... TO’ heading:
This heading indicates the period of the visa holder’s stay as authorised by
the visa.
The date from which the visa holder may enter the territory for which the
visa is valid is written as below, following the word ‘FROM’:
— the day is written using two digits, the first of which is a zero if the day
in question is a single digit,
— horizontal dash,
— the month is written using two digits, the first of which is a zero if the
month in question is a single digit,
— horizontal dash,
— the year is written using two digits, which correspond with the last two
digits of the year.
For example: 05-12-07 = 5 December 2007.
The date of the last day of the period of the visa holder’s authorised stay is
entered after the word ‘TO’ and is written in the same way as the first date.
The visa holder must have left the territory for which the visa is valid by
midnight on that date.
3. ‘NUMBER OF ENTRIES’ heading:
This heading shows the number of times the visa holder may enter the
territory for which the visa is valid, i.e. it refers to the number of periods
of stay which may be spread over the entire period of validity, see 4.
The number of entries may be one, two or more. This number is written to
the right-hand side of the preprinted part, using ‘01’, ‘02’ or the
abbreviation ‘MULT’, where the visa authorises more than two entries.
When a multiple airport transit visa is issued pursuant to Article 26(3) of
this Regulation, the visa’s validity is calculated as follows: first date of
departure plus six months.
The visa is no longer valid when the total number of exits made by the visa
holder equals the number of authorised entries, even if the visa holder has
not used up the number of days authorised by the visa.
4. ‘DURATION OF VISIT ... DAYS’ heading:
This heading indicates the number of days during which the visa holder may
stay in the territory for which the visa is valid. This stay may be continuous
or, depending on the number of days authorised, spread over several periods
between the dates mentioned under 2, bearing in mind the number of entries
authorised under 3.
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The number of days authorised is written in the blank space between
‘DURATION OF VISIT’ and ‘DAYS’, in the form of two digits, the first
of which is a zero if the number of days is less than 10.
The maximum number of days that may be entered under this heading is 90.
When a visa is valid for more than six months, the duration of stays is 90
days in every six-month period.
5. ‘ISSUED IN ... ON …’ heading:
This heading gives the name of the location where the issuing authority is
situated. The date of issue is indicated after ‘ON’.
The date of issue is written in the same way as the date referred to in 2.
6. ‘PASSPORT NUMBER’ heading:
This heading indicates the number of the travel document to which the visa
sticker is affixed.
In case the person to whom the visa is issued is included in the passport of
the spouse, parental authority or legal guardian, the number of the travel
document of that person is indicated.
When the applicant’s travel document is not recognised by the issuing
Member State, the uniform format for the separate sheet for affixing visas
is used for affixing the visa.
The number to be entered under this heading, if the visa sticker is affixed to
the separate sheet, is not the passport number but the same typographical
number as appears on the form, made up of six digits.
7. ‘TYPE OF VISA’ heading:
In order to facilitate matters for the control authorities, this heading specifies
the type of visa using the letters A, C and D as follows:
A: airport transit visa (as defined in Article 2(5) of this Regulation)
C: visa (as defined in Article 2(2) of this Regulation)
D: long-stay visa
8. ‘SURNAME AND FIRST NAME’ heading:
The first word in the ‘surname’ box followed by the first word in the ‘first
name’ box of the visa holder’s travel document is written in that order. The
issuing authority verifies that the name and first name which appear in the
travel document and which are to be entered under this heading and in the
section to be electronically scanned are the same as those appearing in the
visa application. If the number of characters of the surname and first name
exceeds the number of spaces available, the excess characters are replaced
by a dot (.).
9. (a) Mandatory entries to be added in the ‘COMMENTS’ section
— in the case of a visa issued on behalf of another Member State
pursuant to Article 8, the following mention is added: ‘R/[Code of
represented Member State]’,
— in the case of a visa issued for the purpose of transit, the following
mention is added: ‘TRANSIT’,
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— where all data referred to in Article 5(1) of the VIS Regulation is
registered in the Visa Information System, the following mention is
added: ‘VIS’,
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— where only the data referred to in points (a) and (b) of Article 5(1)
of the VIS Regulation is registered in the Visa Information System
but the data referred to in point (c) of that paragraph was not
collected because the collection of fingerprints was not mandatory
in the region concerned, the following mention is added: ‘VIS 0';
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(b) National entries in ‘COMMENTS’ section
This section also contains the comments in the language of the issuing
Member State relating to national provisions. However, such comments
shall not duplicate the mandatory comments referred to in point 1;
(c) Section for the photograph
The visa holder’s photograph, in colour, shall be integrated in the space
reserved for that purpose.
The following rules shall be observed with respect to the photograph to
be integrated into the visa sticker.
The size of the head from chin to crown shall be between 70 % and
80 % of the vertical dimension of the surface of the photograph.
The minimum resolution requirements shall be:
— 300 pixels per inch (ppi), uncompressed, for scanning,
— 720 dots per inch (dpi) for colour printing of photos.
10. Machine-readable zone
This section is made up of two lines of 36 characters (OCR B-10 cpi).
First line: 36 characters (mandatory)
Positions Number of characters Heading contents Specifications
1-2 2 Type of document First character: V
Second character: code indicating type of visa
(A, C or D)
3-5 3 Issuing State ICAO alphabetic code 3-character: BEL, CHE,
CZE, DNK, D<<, EST, GRC, ESP, FRA, ITA,
LVA, LTU, LUX, HUN, MLT, NLD, AUT,
POL, PRT, SVN, SVK, FIN, SWE, ISL, NOR
6-36 31 Surname and first
name
The surname should be separated from the first
names by 2 symbols (<<); individual
components of the name should be separated
by one symbol (<); spaces which are not
needed should be filled in with one symbol (<)
Second line: 36 characters (mandatory)
Positions Number of characters Heading contents Specifications
1 9 Visa number This is the number printed in the top right-hand
corner of the sticker
10 1 Control character This character is the result of a complex calculation,
based on the previous area according to
an algorithm defined by the ICAO
11 3 Applicant’s
nationality
Alphabetic coding according to ICAO 3character
codes
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Positions Number of characters Heading contents Specifications
14 6 Date of birth The order followed is YYMMDD where:
YY = year (mandatory)
MM = month or << if unknown
DD = day or << if unknown
20 1 Control character This character is the result of a complex calculation,
based on the previous area according to
an algorithm defined by the ICAO
21 1 Sex F = Female,
M = Male,
< = Not specified
22 6 Date on which the
visa’s validity
ends
The order followed is YYMMDD without a
filler
28 1 Control character This character is the result of a complex calculation,
based on the previous area according to
an algorithm defined by the ICAO
29 1 Territorial validity (a) For LTV visas, insert the letter T
(b) For uniform visas insert the filler <
30 1 Number of entries 1, 2, or M
31 2 Duration of stay (a) Short stay: number of days should be
inserted in the visual reading area
(b) Long stay: <<
33 4 Start of validity The structure is MMDD without any filler.
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ANNEX VIII
AFFIXING THE VISA STICKER
1. The visa sticker shall be affixed to the first page of the travel document that
contains no entries or stamps — other than the stamp indicating that an
application is admissible.
2. The sticker shall be aligned with and affixed to the edge of the page of the
travel document. The machine-readable zone of the sticker shall be aligned
with the edge of the page.
3. The stamp of the issuing authorities shall be placed in the ‘COMMENTS’
section in such a manner that it extends beyond the sticker onto the page of
the travel document.
4. Where it is necessary to dispense with the completion of the section to be
scanned electronically, the stamp may be placed in this section to render it
unusable. The size and content of the stamp to be used shall be determined
by the national rules of the Member State.
5. To prevent re-use of a visa sticker affixed to the separate sheet for affixing a
visa, the seal of the issuing authorities shall be stamped to the right,
straddling the sticker and the separate sheet, in such a way as neither to
impede reading of the headings and the comments nor to enter the machinereadable
zone.
6. The extension of a visa, pursuant to Article 33 of this Regulation, shall take
the form of a visa sticker. The seal of the issuing authorities shall be affixed
to the visa sticker.
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ANNEX IX
PART 1
Rules for issuing visas at the border to seafarers in transit subject to visa
requirements
These rules relate to the exchange of information between the competent
authorities of the Member States with respect to seafarers in transit subject to
visa requirements. Insofar as a visa is issued at the border on the basis of the
information that has been exchanged, the responsibility lies with the Member
State issuing the visa.
For the purposes of these rules:
‘Member State port’: means a port constituting an external border of a Member
State;
‘Member State airport’: means an airport constituting an external border of a
Member State.
I. Signing on a vessel berthed or expected at a Member State port (entry into
the territory of the Member States)
— the shipping company or its agent shall inform the competent authorities
at the Member State port where the ship is berthed or expected that
seafarers subject to visa requirements are due to enter via a Member
State airport, land or sea border. The shipping company or its agent
shall sign a guarantee in respect of those seafarers that all expenses for
the stay and, if necessary, for the repatriation of the seafarers will be
covered by the shipping company,
— those competent authorities shall verify as soon as possible whether the
information provided by the shipping company or its agent is correct and
shall examine whether the other conditions for entry into the territory of
the Member States have been satisfied. The travel route within the
territory of the Member States shall also be verified e.g. by reference
to the (airline) tickets,
— when seafarers are due to enter via a Member State airport, the competent
authorities at the Member State port shall inform the competent
authorities at the Member State airport of entry, by means of a duly
completed form for seafarers in transit who are subject to visa
requirements (as set out in Part 2), sent by fax, electronic mail or other
means, of the results of the verification and shall indicate whether a visa
may in principle be issued at the border. When seafarers are due to enter
via a land or a sea border, the competent authorities at the border post via
which the seafarer concerned enters the territory of the Member States
shall be informed by the same procedure,
— where the verification of the available data is positive and the outcome is
clearly consistent with the seafarer’s declaration or documents, the
competent authorities at the Member State airport of entry or exit may
issue a visa at the border the authorised stay of which shall correspond to
what is necessary for the purpose of the transit. Furthermore, in such
cases the seafarer’s travel document shall be stamped with a Member
State entry or exit stamp and given to the seafarer concerned.
II. Leaving service from a vessel that has entered a Member State port (exit
from the territory of the Member States)
— the shipping company or its agent shall inform the competent authorities
at that Member State port of entry of seafarers subject to visa
requirements who are due to leave their service and exit from the
Member States territory via a Member State airport, land or sea border.
The shipping company or its agent shall sign a guarantee in respect of
those seafarers that all expenses for the stay and, if necessary, for the
repatriation costs of the seafarers will be covered by the shipping
company,
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— the competent authorities shall verify as soon as possible whether the
information provided by the shipping company or its agent is correct
and shall examine whether the other conditions for entry into the
territory of the Member States have been satisfied. The travel route
within the territory of the Member States shall also be verified e.g. by
reference to the (airline) tickets,
— where the verification of the available data is positive, the competent
authorities may issue a visa the authorised stay of which shall correspond
to what is necessary for the purpose of the transit.
III. Transferring from a vessel that entered a Member State port to another vessel
— the shipping company or its agent shall inform the competent authorities
at that Member State port of entry of seafarers subject to visa
requirements who are due to leave their service and exit from the
territory of the Member States via another Member State port. The
shipping company or its agent shall sign a guarantee in respect of
those seafarers that all expenses for the stay and, if necessary, for the
repatriation of the seafarers will be covered by the shipping company,
— the competent authorities shall verify as soon as possible whether the
information provided by the shipping company or its agent is correct
and shall examine whether the other conditions for entry into the
territory of the Member States have been satisfied. The competent
authorities at the Member State port from which the seafarers will
leave the territory of the Member States by ship shall be contacted for
the examination. A check shall be carried out to establish whether the
ship they are joining is berthed or expected there. The travel route within
the territory of the Member States shall also be verified,
— where the verification of the available data is positive, the competent
authorities may issue a visa the authorised stay of which shall correspond
to what is necessary for the purpose of the transit.
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PART 2
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DETAILED DESCRIPTION OF FORM
Points 1-4: the identity of the seafarer
(1) A. Surname(s)
B. Forename(s)
C. Nationality
D. Rank/Grade
(2) A. Place of birth
B. Date of birth
(3) A. Passport number
B. Date of issue
C. Period of validity
(4) A. Seaman’s book number
B. Date of issue
C. Period of validity
As to points 3 and 4: depending on the nationality of the seafarer and the
Member State being entered, a travel document or a seaman’s book may be
used for identification purposes.
Points 5-8: the shipping agent and the vessel concerned
(5) Name of shipping agent (the individual or corporation that
represents the ship owner on the spot in all matters relating
to the ship owner’s duties in fitting out the vessel) under 5A
and telephone number (and other contact details as fax
number, electronic mail address) under 5B
(6) A. Name of vessel
B. IMO-number (this number consists of 7 numbers and is
also known as ‘Lloyds-number’)
C. Flag (under which the merchant vessel is sailing)
(7) A. Date of arrival of vessel
B. Origin (port) of vessel
Letter ‘A’ refers to the vessel’s date of arrival in the port
where the seafarer is to sign on
(8) A. Date of departure of vessel
B. Destination of vessel (next port)
As to points 7A and 8A: indications regarding the length of time for which the
seafarer may travel in order to sign on.
It should be remembered that the route followed is very much subject to unexpected
interferences and external factors such as storms, breakdowns, etc.
Points 9-12: purpose of the seafarer’s journey and his destination
(9) The ‘final destination’ is the end of the seafarer’s journey. This may be
either the port at which he is to sign on or the country to which he is
heading if he is leaving service.
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(10) Reasons for application
(a) In the case of signing on, the final destination is the port at which the
seafarer is to sign on.
(b) In the case of transfer to another vessel within the territory of the
Member States, it is also the port at which the seafarer is to sign on.
Transfer to a vessel situated outside the territory of the Member States
must be regarded as leaving service.
(c) In the case of leaving service, this can occur for various reasons, such as
end of contract, accident at work, urgent family reasons, etc.
(11) Means of transport
List of means used within the territory of the Member States by the seafarer
in transit who is subject to a visa requirement, in order to reach his final
destination. On the form, the following three possibilities are envisaged:
(a) car (or coach);
(b) train;
(c) aeroplane.
(12) Date of arrival (on the territory of the Member States)
Applies primarily to a seafarer at the first Member State airport or border
crossing point (since it may not always be an airport) at the external border
via which he wishes to enter the territory of the Member States.
Date of transit
This is the date on which the seafarer signs off at a port in the territory of
the Member States and heads towards another port also situated in the
territory of the Member States.
Date of departure
This is the date on which the seafarer signs off at a port in the territory of
the Member States to transfer to another vessel at a port situated outside the
territory of the Member States, or the date on which the seafarer signs off at
a port in the territory of the Member States to return to his home (outside
the territory of the Member States).
After determining the three means of travel, available information should
also be provided concerning those means:
(a) car, coach: registration number;
(b) train: name, number, etc.;
(c) flight data: date, time, number.
(13) Formal declaration signed by the shipping agent or the ship owner
confirming his responsibility for the expenses for the stay and, if necessary,
for the repatriation of the seafarer.
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ANNEX X
LIST OF MINIMUM REQUIREMENTS TO BE INCLUDED IN THE
LEGAL INSTRUMENT IN THE CASE OF COOPERATION WITH
EXTERNAL SERVICE PROVIDERS
A. In relation to the performance of its activities, the external service provider
shall, with regard to data protection:
(a) prevent at all times any unauthorised reading, copying, modification or
deletion of data, in particular during their transmission to the diplomatic
mission or consular post of the Member State(s) competent for processing
an application;
(b) in accordance with the instructions given by the Member State(s)
concerned, transmit the data,
— electronically, in encrypted form, or
— physically, in a secured way;
(c) transmit the data as soon as possible:
— in the case of physically transferred data, at least once a week,
— in the case of electronically transferred encrypted data, at the latest at
the end of the day of their collection;
(d) delete the data immediately after their transmission and ensure that the
only data that might be retained shall be the name and contact details of
the applicant for the purposes of the appointment arrangements, as well
as the passport number, until the return of the passport to the applicant,
where applicable;
(e) ensure all the technical and organisational security measures required to
protect personal data against accidental or unlawful destruction or accidental
loss, alteration, unauthorised disclosure or access, in particular
where the cooperation involves the transmission of files and data to the
diplomatic mission or consular post of the Member State(s) concerned
and all other unlawful forms of processing personal data;
(f) process the data only for the purposes of processing the personal data of
applicants on behalf of the Member State(s) concerned;
(g) apply data protection standards at least equivalent to those set out in
Directive 95/46/EC;
(h) provide applicants with the information required pursuant to Article 37 of
the VIS Regulation.
B. In relation to the performance of its activities, the external service provider
shall, with regard to the conduct of staff:
(a) ensure that its staff are appropriately trained;
(b) ensure that its staff in the performance of their duties:
— receive applicants courteously,
— respect the human dignity and integrity of applicants,
— do not discriminate against persons on grounds of sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation, and
— respect the rules of confidentiality which shall also apply once
members of staff have left their job or after suspension or termination
of the legal instrument;
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(c) provide identification of the staff working for the external service
provider at all times;
(d) prove that its staff do not have criminal records and have the requisite
expertise.
C. In relation to the verification of the performance of its activities, the external
service provider shall:
(a) provide for access by staff entitled by the Member State(s) concerned to
its premises at all times without prior notice, in particular for inspection
purposes;
(b) ensure the possibility of remote access to its appointment system for
inspection purposes;
(c) ensure the use of relevant monitoring methods (e.g. test applicants;
webcam);
(d) ensure access to proof of data protection compliance, including reporting
obligations, external audits and regular spot checks;
(e) report to the Member State(s) concerned without delay any security
breaches or any complaints from applicants on data misuse or unauthorised
access, and coordinate with the Member State(s) concerned in
order to find a solution and give explanatory responses promptly to the
complaining applicants.
D. In relation to general requirements, the external service provider shall:
(a) act under the instructions of the Member State(s) competent for
processing the application;
(b) adopt appropriate anti-corruption measures (e.g. provisions on staff
remuneration; cooperation in the selection of staff members employed
on the task; two-man-rule; rotation principle);
(c) respect fully the provisions of the legal instrument, which shall contain a
suspension or termination clause, in particular in the event of breach of
the rules established, as well as a revision clause with a view to ensuring
that the legal instrument reflects best practice.
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ANNEX XI
SPECIFIC PROCEDURES AND CONDITIONS FACILITATING THE
ISSUING OF VISAS TO MEMBERS OF THE OLYMPIC FAMILY
PARTICIPATING IN THE OLYMPIC GAMES AND PARALYMPIC
GAMES
CHAPTER I
Purpose and definitions
Article 1
Purpose
The following specific procedures and conditions facilitate the application for and
issuing of visas to members of the Olympic family for the duration of the
Olympic and Paralympic Games organised by a Member State.
In addition, the relevant provisions of the Community acquis concerning
procedures for applying for and issuing visas shall apply.
Article 2
Definitions
For the purposes of this Regulation:
1. ‘Responsible organisations’ relate to measures envisaged to facilitate the
procedures for applying for and issuing visas for members of the Olympic
family taking part in the Olympic and/or Paralympic Games, and they mean
the official organisations, in terms of the Olympic Charter, which are entitled
to submit lists of members of the Olympic family to the Organising
Committee of the Member State hosting the Olympic and Paralympic
Games with a view to the issue of accreditation cards for the Games;
2. ‘Member of the Olympic family’ means any person who is a member of the
International Olympic Committee, the International Paralympic Committee,
International Federations, the National Olympic and Paralympic Committees,
the Organising Committees of the Olympic Games and the national
associations, such as athletes, judges/referees, coaches and other sports technicians,
medical personnel attached to teams or individual sportsmen/women
and media-accredited journalists, senior executives, donors, sponsors or other
official invitees, who agree to be guided by the Olympic Charter, act under
the control and supreme authority of the International Olympic Committee, are
included on the lists of the responsible organisations and are accredited by the
Organising Committee of the Member State hosting the Olympic and Paralympic
Games as participants in the [year] Olympic and/or Paralympic
Games;
3. ‘Olympic accreditation cards’ which are issued by the Organising Committee
of the Member State hosting the Olympic and Paralympic Games in
accordance with its national legislation means one of two secure documents,
one for the Olympic Games and one for the Paralympic Games, each bearing
a photograph of its holder, establishing the identity of the member of the
Olympic family and authorising access to the facilities at which competitions
are held and to other events scheduled throughout the duration of the Games;
4. ‘Duration of the Olympic Games and Paralympic Games’ means the period
during which the Olympic Games and the period during which the Paralympic
Games take place;
5. ‘Organising Committee of the Member State hosting the Olympic and Paralympic
Games’ means the Committee set up on by the hosting Member State
in accordance with its national legislation to organise the Olympic and Paralympic
Games, which decides on accreditation of members of the Olympic
family taking part in those Games;
6. ‘Services responsible for issuing visas’ means the services designated by the
Member State hosting the Olympic Games and Paralympic Games to examine
applications and issue visas to members of the Olympic family.
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2009R0810 — EN — 04.10.2011 — 001.001 — 70
CHAPTER II
Issuing of visas
Article 3
Conditions
A visa may be issued pursuant to this Regulation only where the person
concerned:
(a) has been designated by one of the responsible organisations and accredited
by the Organising Committee of the Member State hosting the Olympic and
Paralympic Games as a participant in the Olympic and/or Paralympic Games;
(b) holds a valid travel document authorising the crossing of the external
borders, as referred to in Article 5 of the Schengen Borders Code;
(c) is not a person for whom an alert has been issued for the purpose of refusing
entry;
(d) is not considered to be a threat to public policy, national security or the
international relations of any of the Member States.
Article 4
Filing of the application
1. Where a responsible organisation draws up a list of the persons selected to
take part in the Olympic and/or Paralympic Games, it may, together with the
application for the issue of an Olympic accreditation card for the persons
selected, file a collective application for visas for those persons selected who
are required to be in possession of a visa in accordance with Regulation (EC) No
539/2001, except where those persons hold a residence permit issued by a
Member State or a residence permit issued by the United Kingdom or Ireland,
in accordance with Directive 2004/38/EC of the European Parliament and of the
Council of 29 April 2004 on the right of citizens of the Union and their family
members to move and reside freely within the territory of the Member States (1).
2. A collective application for visas for the persons concerned shall be
forwarded at the same time as applications for the issue of an Olympic accreditation
card to the Organising Committee of the Member State hosting the
Olympic and Paralympic Games in accordance with the procedure established
by it.
3. Individual visa applications shall be submitted for each person taking part
in the Olympic and/or Paralympic Games.
4. The Organising Committee of the Member State hosting the Olympic and
Paralympic Games shall forward to the services responsible for issuing visas, a
collective application for visas as quickly as possible, together with copies of
applications for the issue of an Olympic accreditation card for the persons
concerned, bearing their full name, nationality, sex and date and place of birth
and the number, type and expiry date of their travel document.
Article 5
Examination of the collective application for visas and type of the visa issued
1. The visa shall be issued by the services responsible for issuing visas
following an examination designed to ensure that the conditions set out in
Article 3 are met.
2. The visa issued shall be a uniform, multiple-entry visa authorising a stay of
not more than three months for the duration of the Olympic and/or Paralympic
Games.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 71
(1) OJ L 158, 30.4.2004, p. 77.
3. Where the member of the Olympic family concerned does not meet the
conditions set out in point (c) or (d) of Article 3, the services responsible for
issuing visas may issue a visa with limited territorial validity in accordance with
Article 25 of this Regulation.
Article 6
Form of the visa
1. The visa shall take the form of two numbers entered on the Olympic
accreditation card. The first number shall be the visa number. In the case of a
uniform visa, that number shall be made up of seven (7) characters comprising
six (6) digits preceded by the letter ‘C’. In the case of a visa with limited
territorial validity, that number shall be made up of eight (8) characters
comprising six (6) digits preceded by the letters ‘XX’ (1). The second number
shall be the number of the travel document of the person concerned.
2. The services responsible for issuing visas shall forward the visa numbers to
the Organising Committee of the Member State hosting the Olympic and Paralympic
Games for the purpose of issuing Olympic accreditation cards.
Article 7
Waiver of fees
The examination of visa applications and the issue of visas shall not give rise to
any fees being charged by the services responsible for issuing visas.
CHAPTER III
General and final provisions
Article 8
Cancellation of a visa
Where the list of persons put forward as participants in the Olympic and/or
Paralympic Games is amended before the Games begin, the responsible organisations
shall inform without any delay the Organising Committee of the Member
State hosting the Olympic and Paralympic Games thereof so that the Olympic
accreditation cards of the persons removed from the list may be revoked. The
Organising Committee shall notify the services responsible for issuing visas
thereof and shall inform them of the numbers of the visas in question.
The services responsible for issuing visas shall cancel the visas of the persons
concerned. They shall immediately inform the authorities responsible for border
checks thereof, and the latter shall without delay forward that information to the
competent authorities of the other Member States.
Article 9
External border checks
1. The entry checks carried out on members of the Olympic family who have
been issued visas in accordance with this Regulation shall, when such members
cross the external borders of the Member States, be limited to checking
compliance with the conditions set out in Article 3.
2. For the duration of the Olympic and/or Paralympic Games:
(a) entry and exit stamps shall be affixed to the first free page of the travel
document of those members of the Olympic family for whom it is necessary
to affix such stamps in accordance with Article 10(1) of the Schengen
Borders Code. On first entry, the visa number shall be indicated on that
same page;
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 72
(1) Reference to the ISO code of the organising Member State.
(b) the conditions for entry provided for in Article 5(1)(c) of the Schengen
Borders Code shall be presumed to be fulfilled once a member of the
Olympic family has been duly accredited.
3. Paragraph 2 shall apply to members of the Olympic family who are thirdcountry
nationals, whether or not they are subject to the visa requirement under
Regulation (EC) No 539/2001.
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 73
ANNEX XII
ANNUAL STATISTICS ON UNIFORM VISAS, VISAS WITH LIMITED
TERRITORIAL VALIDITY AND AIRPORT TRANSIT VISAS
Data to be submitted to the Commission within the deadline set out in Article 46
for each location where individual Member States issue visas:
— total of A visas applied for (including multiple A visas),
— total of A visas issued (including multiple A visas),
— total of multiple A visas issued,
— total of A visas not issued (including multiple A visas),
— total of C visas applied for (including multiple-entry C visas),
— total of C visas issued (including multiple-entry C visas),
— total of multiple-entry C visas issued,
— total of C visas not issued (including multiple-entry C visas),
— total of LTV visas issued.
General rules for the submission of data:
— the data for the complete previous year shall be compiled in one single file,
— the data shall be provided using the common template provided by the
Commission,
— data shall be available for the individual locations where the Member State
concerned issue visas and grouped by third country,
— ‘Not issued’ covers data on refused visas and applications where the examination
has been discontinued as provided for in Article 8(2).
In the event of data being neither available nor relevant for one particular
category and a third country, Member States shall leave the cell empty (and
not enter ‘0’ (zero), ‘N.A.’ (non-applicable) or any other value).
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 74
ANNEX XIII
CORRELATION TABLE
Provision of this Regulation
Provision of the Schengen Convention
(CSA), Common Consular Instructions
(CCI) or of the Schengen Executive
Committee (SCH/Com-ex) replaced
TITLE I
GENERAL PROVISIONS
Article 1
Objective and scope
CCI, Part I.1. Scope (CSA Articles 9
and 10)
Article 2
Definitions
(1)-(4)
CCI: Part I. 2. Definitions and types of
visas
CCI: Part IV ‘Legal basis’
CSA: Articles 11(2), 14(1), 15, 16
TITLE II
AIRPORT TRANSIT VISA
Article 3
Third-country nationals required to
hold an airport transit visa
Joint Action 96/197/JHA, CCI, Part I.
2.1.1
TITLE III
PROCEDURES AND CONDITIONS FOR ISSUING VISAS
CHAPTER I
Authorities taking part in the procedures relating to applications
Article 4
Authorities competent for taking part in
the procedures relating to applications
CCI Part II. 4., CSA, Art. 12(1), Regulation
(EC) No 415/2003
Article 5
Member State competent for examining
and deciding on an application
CCI, Part II 1.1(a) (b), CSA
Article 12(2)
Article 6
Consular territorial competence
CCI, Part II, 1.1 and 3
Article 7
Competence to issue visas to thirdcountry
nationals legally present
within the territory of a Member State
—
Article 8
Representation agreements
CCI, Part II, 1.2
CHAPTER II
Application
Article 9
Practical modalities for lodging an
application
CCI, Annex 13, note (Article 10(1))
Article 10
General rules for lodging an appli­
cation
—
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 75
Article 11
Application form
CCI, Part III. 1.1.
Article 12
Travel document
CCI, Part III. 2. (a), CSA, Article 13(1)
and (2)
Article 13
Biometric identifiers
CCI, Part III. 1.2 (a) and (b)
Article 14
Supporting documents
CCI, Part III.2(b) and Part V.1.4, Comex
(98) 57
Article 15
Travel medical insurance
CCI, Part V, 1.4
Article 16
Visa fee
CCI Part VII. 4. and Annex 12
Article 17
Service fee
CCI, Part VII, 1.7
CHAPTER III
Examination of and decision on an application
Article 18
Verification of consular competence
—
Article 19
Admissibility
—
Article 20
Stamp indicating that an application is
admissible
CCI, Part VIII, 2
Article 21
Verification of entry conditions and
risk assessment
CCI, Part III.4 and Part V.1.
Article 22
Prior consultation of central authorities
of other Member States
CCI, Part II, 2.3 and Part V, 2.3(a)-(d)
Article 23
Decision on the application
CCI, Part V. 2.1 (second indent), 2.2,
CCI
CHAPTER IV
Issuing of the visa
Article 24
Issuing of a uniform visa
CCI, Part V, 2.1
Article 25
Issuing of a visa with limited territorial
validity
CCI, Part V, 3, Annex 14, CSA 11(2),
14(1) and 16
Article 26
Issuing of an airport transit visa
CCI, Part I, 2.1.1 — Joint Action 96/
197/JHA
Article 27
Filling in the visa sticker
CCI, Part VI.1-2-3-4
Article 28
Invalidation of a completed visa sticker
CCI, Part VI, 5.2
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 76
Article 29
Affixing a visa sticker
CCI, Part VI, 5.3
Article 30
Rights derived from an issued visa
CCI, Part I, 2.1, last sentence
Article 31
Information of central authorities of
other Member States
—
Article 32
Refusal of a visa
—
CHAPTER V
Modification of an issued visa
Article 33
Extension
Com-ex (93) 21
Article 34
Annulment and revocation
Com-ex (93) 24 and Annex 14 to the
CCI
CHAPTER VI
Visas issued at the external borders
Article 35
Visas applied for at the external border
Regulation (EC) No 415/2003
Article 36
Visas issued to seafarers in transit at
the external border
TITLE IV
ADMINISTRATIVE MANAGEMENT AND ORGANISATION
Article 37
Organisation of visa sections
CCI, VII, 1-2-3
Article 38
Resources for examining applications
and monitoring of consulates
—
CCI, Part VII, 1A
Article 39
Conduct of staff
CCI, Part III.5
Article 40
Forms of cooperation
CCI, Part VII, 1AA
Article 41
Cooperation between Member States
Article 42
Recourse to honorary consuls
CCI, Part VII, AB
Article 43
Cooperation with external service
providers
CCI, Part VII, 1B
Article 44
Encryption and secure transfer of data
CCI, Part II, 1.2, PART VII, 1.6, sixth,
seventh, eighth and ninth
subparagraphs
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 77
Article 45
Member States’ cooperation with
commercial intermediaries
CCI, VIII, 5.2
Article 46
Compilation of statistics
SCH Com-ex (94) 25 and (98) 12
Article 47
Information to the general public
—
TITLE V
LOCAL SCHENGEN COOPERATION
Article 48
Local Schengen cooperation between
Member States’ consulates
CCI, VIII, 1-3-4
TITLE VI
FINAL PROVISIONS
Article 49
Arrangements in relation to the
Olympic Games and Paralympic
Games
—
Articles 50
Amendments to the Annexes
—
Article 51
Instructions on the practical application
of the Visa Code
—
Article 52
Committee procedure
—
Article 53
Notification
—
Article 54
Amendments to Regulation (EC) No
767/2008
—
Article 55
Amendments to Regulation (EC) No
562/2006
—
Article 56
Repeals
—
Article 57
Monitoring and evaluation
—
Article 58
Entry into force
—
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 78
ANNEXES
Annex I
Harmonised application form
CCI, Annex 16
Annex II
Non-exhaustive list of supporting
documents
Partially CCI, V, 1.4.
Annex III
Uniform format and use of the stamp
indicating that a visa application is
admissible
CCI, VIII, 2
Annex IV
Common list of third countries, listed
in Annex I to Regulation (EC) No 539/
2001whose nationals are required to be
in possession of an airport transit visa
when passing through the international
transit area of airports situated on the
territory of the Member States
CCI, Annex 3, Part I
Annex V
List of residence permits entitling their
holders to transit through the airports
of Member States without being
required to hold an airport transit visa
CCI, Annex 3, Part III
Annex VI
Standard form for notifying and motivating
refusal, annulment or revocation
of a visa
—
Annex VII
Filling in the visa sticker
CCI, Part VI, 1-4, Annex 10
Annex VIII
Affixing the visa sticker
CCI, Part VI, 5.3
Annex IX
Rules for issuing visas at the border to
seafarers in transit subject to visa
requirements
Regulation (EC) No 415/2003,
Annexes I and II
Annex X
List of minimum requirements to be
included in the legal instrument in the
case of cooperation with external
service providers
CCI, Annex 19
Annex XI
Specific procedures and conditions
facilitating the issuing of visas to
members of the Olympic Family
participating in the Olympic Games
and Paralympic Games
—
Annex XII
Annual statistics on uniform visas,
visas with limited territorial validity
and airport transit visas
—
▼B
2009R0810 — EN — 04.10.2011 — 001.001 — 79
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B REGULATION (EC) No 562/2006 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL
of 15 March 2006
establishing a Community Code on the rules governing the movement of persons across borders
(Schengen Borders Code)
(OJ L 105, 13.4.2006, p. 1)
Amended by:
Official Journal
No page date
►M1 Regulation (EC) No 296/2008 of the European Parliament and of the
Council of 11 March 2008
L 97 60 9.4.2008
►M2 Regulation (EC) No 81/2009 of the European Parliament and of the
Council of 14 January 2009
L 35 56 4.2.2009
►M3 Regulation (EC) No 810/2009 of the European Parliament and of the
Council of 13 July 2009
L 243 1 15.9.2009
►M4 Regulation (EU) No 265/2010 of the European Parliament and of the
Council of 25 March 2010
L 85 1 31.3.2010
2006R0562 — EN — 05.04.2010 — 003.002 — 1
▼B
REGULATION (EC) No 562/2006 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL
of 15 March 2006
establishing a Community Code on the rules governing the
movement of persons across borders (Schengen Borders Code)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Articles 62(1) and (2)(a) thereof,
Having regard to the proposal from the Commission,
Acting in accordance with the procedure laid down in Article 251 of the
Treaty (1),
Whereas:
(1) The adoption of measures under Article 62(1) of the Treaty with
a view to ensuring the absence of any controls on persons
crossing internal borders forms part of the Union's objective of
establishing an area without internal borders in which the free
movement of persons is ensured, as set out in Article 14 of the
Treaty.
(2) In accordance with Article 61 of the Treaty, the creation of an
area in which persons may move freely is to be flanked by other
measures. The common policy on the crossing of external
borders, as provided for by Article 62(2) of the Treaty, is such
a measure.
(3) The adoption of common measures on the crossing of internal
borders by persons and border control at external borders should
reflect the Schengen acquis incorporated in the European Union
framework, and in particular the relevant provisions of the
Convention implementing the Schengen Agreement of 14 June
1985 between the Governments of the States of the Benelux
Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their
common borders (2) and the Common Manual (3).
(4) As regards border control at external borders, the establishment of
a ‘common corpus’ of legislation, particularly via consolidation
and development of the acquis, is one of the fundamental
components of the common policy on the management of the
external borders, as defined in the Commission Communication
of 7 May 2002‘Towards integrated management of the external
borders of the Member States of the European Union’. This
objective was included in the ‘Plan for the management of the
external borders of the Member States of the European Union’,
approved by the Council on 13 June 2002 and endorsed by the
Seville European Council on 21 and 22 June 2002 and by the
Thessaloniki European Council on 19 and 20 June 2003.
(5) The definition of common rules on the movement of persons
across borders neither calls into question nor affects the rights
of free movement enjoyed by Union citizens and members of
their families and by third-country nationals and members of
their families who, under agreements between the Community
and its Member States, on the one hand, and those third
2006R0562 — EN — 05.04.2010 — 003.002 — 2
(1) Opinion of the European Parliament of 23 June 2005 (not yet published in
the Official Journal) and Council Decision of 21 February 2006.
(2) OJ L 239, 22.9.2000, p. 19. Convention as last amended by Regulation (EC)
No 1160/2005 of the European Parliament and of the Council (OJ L 191,
22.7.2005, p. 18).
(3) OJ C 313, 16.12.2002, p. 97. Common Manual as last amended by Council
Regulation (EC) No 2133/2004 (OJ L 369, 16.12.2004, p. 5).
▼B
countries, on the other hand, enjoy rights of free movement
equivalent to those of Union citizens.
(6) Border control is in the interest not only of the Member State at
whose external borders it is carried out but of all Member States
which have abolished internal border control. Border control
should help to combat illegal immigration and trafficking in
human beings and to prevent any threat to the Member States'
internal security, public policy, public health and international
relations.
(7) Border checks should be carried out in such a way as to fully
respect human dignity. Border control should be carried out in a
professional and respectful manner and be proportionate to the
objectives pursued.
(8) Border control comprises not only checks on persons at border
crossing points and surveillance between these border crossing
points, but also an analysis of the risks for internal security
and analysis of the threats that may affect the security of
external borders. It is therefore necessary to lay down the
conditions, criteria and detailed rules governing checks at
border crossing points and surveillance.
(9) Provision should be made for relaxing checks at external borders
in the event of exceptional and unforeseeable circumstances in
order to avoid excessive waiting time at borders crossing-points.
The systematic stamping of the documents of third-country
nationals remains an obligation in the event of border checks
being relaxed. Stamping makes it possible to establish, with
certainty, the date on which, and where, the border was
crossed, without establishing in all cases that all required travel
document control measures have been carried out.
(10) In order to reduce the waiting times of persons enjoying the
Community right of free movement, separate lanes, indicated
by uniform signs in all Member States, should, where circumstances
allow, be provided at border crossing points. Separate
lanes should be provided in international airports. Where it is
deemed appropriate and if local circumstances so allow,
Member States should consider installing separate lanes at sea
and land border crossing points.
(11) Member States should ensure that control procedures at external
borders do not constitute a major barrier to trade and social and
cultural interchange. To that end, they should deploy appropriate
numbers of staff and resources.
(12) Member States should designate the national service or services
responsible for border-control tasks in accordance with their
national law. Where more than one service is responsible in the
same Member State, there should be close and constant cooperation
between them.
(13) Operational cooperation and assistance between Member States in
relation to border control should be managed and coordinated by
the European Agency for the Management of Operational Cooperation
at the External Borders of the Member States established
by Regulation (EC) No 2007/2004 (1).
(14) This Regulation is without prejudice to checks carried out under
general police powers and security checks on persons identical to
those carried out for domestic flights, to the possibilities for
Member States to carry out exceptional checks on baggage in
accordance with Council Regulation (EEC) No 3925/91 of 19
2006R0562 — EN — 05.04.2010 — 003.002 — 3
(1) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a
European Agency for the Management of Operational Cooperation at the
External Borders of the Member States of the European Union (OJ L 349,
25.11.2004, p. 1).
▼B
December 1991 concerning the elimination of controls and formalities
applicable to the cabin and hold baggage of persons taking
an intra-Community flight and the baggage of persons making an
intra-Community sea crossing (1), and to national law on carrying
travel or identity documents or to the requirement that persons
notify the authorities of their presence on the territory of the
Member State in question.
(15) Member States should also have the possibility of temporarily
reintroducing border control at internal borders in the event of
a serious threat to their public policy or internal security. The
conditions and procedures for doing so should be laid down, so
as to ensure that any such measure is exceptional and that the
principle of proportionality is respected. The scope and duration
of any temporary reintroduction of border control at internal
borders should be restricted to the bare minimum needed to
respond to that threat.
(16) In an area where persons may move freely, the reintroduction of
border control at internal borders should remain an exception.
Border control should not be carried out or formalities imposed
solely because such a border is crossed.
(17) Provision should be made for a procedure enabling the
Commission to adapt certain detailed practical rules governing
border control. In such cases, the measures needed to
implement this Regulation should be taken pursuant to Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers conferred
on the Commission (2).
(18) Provision should also be made for a procedure enabling the
Member States to notify the Commission of changes to other
detailed practical rules governing border control.
(19) Since the objective of this Regulation, namely the establishment
of rules applicable to the movement of persons across borders
cannot be sufficiently achieved by the Member States and can
therefore 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
Regulation does not go beyond what is necessary in order to
achieve that objective.
(20) This Regulation respects fundamental rights and observes the
principles recognised in particular by the Charter of Fundamental
Rights of the European Union. It should be applied in accordance
with the Member States' obligations as regards international
protection and non-refoulement.
(21) By way of derogation from Article 299 of the Treaty, the only
territories of France and the Netherlands to which this Regulation
applies are those in Europe. It does not affect the specific
arrangements applied in Ceuta and Melilla, as defined in the
Agreement on the Accession of the Kingdom of Spain to the
Convention implementing the Schengen Agreement of 14 June
1985 (3).
(22) 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 is not taking part in the adoption of this Regulation
and is not bound by it or subject to its application. Given that
2006R0562 — EN — 05.04.2010 — 003.002 — 4
(1) OJ L 374, 31.12.1991, p. 4. Regulation as amended by Regulation (EC)
No 1882/2003 of the European Parliament and of the Council (OJ L 284,
31.10.2003, p. 1).
(2) OJ L 184, 17.7.1999, p. 23.
(3) OJ L 239, 22.9.2000, p. 69.
▼B
this Regulation builds upon the Schengen acquis under the
provisions of Title IV of Part Three of the Treaty establishing
the European Community, Denmark should, in accordance with
Article 5 of the said Protocol, decide within a period of six
months after the date of adoption of this Regulation whether it
will implement it in its national law or not.
(23) As regards Iceland and Norway, this Regulation constitutes a
development of provisions 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 latters' association with the implementation,
application and development of the Schengen acquis (1)
which fall within the area referred to in Article 1, point A, of
Council Decision 1999/437/EC (2) on certain arrangements for
the application of that Agreement.
(24) An arrangement has to be made to allow representatives of
Iceland and Norway to be associated with the work of
committees assisting the Commission in the exercise of its implementing
powers. Such an arrangement has been contemplated in
the Exchanges of Letters between the Council of the European
Union and the Republic of Iceland and the Kingdom of Norway
concerning committees which assist the European Commission in
the exercise of its executive powers (3), annexed to the abovementioned
Agreement.
(25) As regards Switzerland, this Regulation constitutes a development
of provisions of the Schengen acquis within the meaning of the
Agreement signed between the European Union, the European
Community and the Swiss Confederation concerning the association
of the Swiss Confederation with the implementation,
application and development of the Schengen acquis, which fall
within the area referred to in Article 1, point A, of Decision
1999/437/EC read in conjunction with Article 4(1) of Council
Decisions 2004/849/EC (4) and 2004/860/EC (5).
(26) An arrangement has to be made to allow representatives of Switzerland
to be associated with the work of committees assisting
the Commission in the exercise of its implementing powers. Such
an arrangement has been contemplated in the Exchange of Letters
between the Community and Switzerland, annexed to the abovementioned
Agreement.
(27) This Regulation constitutes a development of provisions of the
Schengen acquis in which the United Kingdom does not take
part, in accordance with Council Decision 2000/365/EC of 29
May 2000 concerning the request of the United Kingdom of
Great Britain and Northern Ireland to take part in some of the
provisions of the Schengen acquis (6). The United Kingdom is
therefore not taking part in its adoption and is not bound by it or
subject to its application.
2006R0562 — EN — 05.04.2010 — 003.002 — 5
(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) OJ L 176, 10.7.1999, p. 53.
(4) Council Decision 2004/849/EC of 25 October 2004 on the signing, on behalf
of the European Union, and on the provisional application of certain
provisions of the Agreement between the European Union, the European
Community and the Swiss Confederation concerning the Swiss Confederation's
association with the implementation, application and development
of the Schengen acquis (OJ L 368, 15.12.2004, p. 26).
(5) Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf
of the European Community, and on the provisional application of certain
provisions of the Agreement between the European Union, the European
Community and the Swiss Confederation, concerning the Swiss Confederation's
association with the implementation, application and development
of the Schengen acquis (OJ L 370, 17.12.2004, p. 78).
(6) OJ L 131, 1.6.2000, p. 43.
▼B
(28) This Regulation constitutes a development of provisions of the
Schengen acquis in which Ireland does not take part, in
accordance with Council Decision 2002/192/EC of 28 February
2002 concerning Ireland's request to take part in some of the
provisions of the Schengen acquis (1). Ireland is therefore not
taking part in its adoption and is not bound by it or subject to
its application.
(29) In this Regulation, the first sentence of Article 1, Article 5(4)(a),
Title III and the provisions of Title II and the annexes thereto
referring to the Schengen Information System (SIS) constitute
provisions building on the Schengen acquis or otherwise related
to it within the meaning of Article 3(2) of the 2003 Act of
Accession,
HAVE ADOPTED THIS REGULATION:
TITLE I
GENERAL PROVISIONS
Article 1
Subject matter and principles
This Regulation provides for the absence of border control of persons
crossing the internal borders between the Member States of the
European Union.
It establishes rules governing border control of persons crossing the
external borders of the Member States of the European Union.
Article 2
Definitions
For the purposes of this Regulation the following definitions shall
apply:
1. ‘internal borders’ means:
(a) the common land borders, including river and lake borders, of
the Member States;
(b) the airports of the Member States for internal flights;
(c) sea, river and lake ports of the Member States for regular ferry
connections;
2. ‘external borders’ means the Member States' land borders, including
river and lake borders, sea borders and their airports, river ports, sea
ports and lake ports, provided that they are not internal borders;
3. ‘internal flight’ means any flight exclusively to or from the territories
of the Member States and not landing in the territory of a
third country;
4. ‘regular ferry connection’ means any ferry connection between the
same two or more ports situated in the territory of the Member
States, not calling at any ports outside the territory of the
Member States and consisting of the transport of passengers and
vehicles according to a published timetable;
5. ‘persons enjoying the Community right of free movement’ means:
(a) Union citizens within the meaning of Article 17(1) of the
Treaty, and third-country nationals who are members of the
2006R0562 — EN — 05.04.2010 — 003.002 — 6
(1) OJ L 64, 7.3.2002, p. 20.
▼B
family of a Union citizen exercising his or her right to free
movement to whom Directive 2004/38/EC of the European
Parliament and of the Council of 29 April 2004 on the right
of citizens of the Union and their family members to move and
reside freely within the territory of the Member States (1)
applies;
(b) third-country nationals and their family members, whatever
their nationality, who, under agreements between the
Community and its Member States, on the one hand, and
those third countries, on the other hand, enjoy rights of free
movement equivalent to those of Union citizens;
6. ‘third-country national’ means any person who is not a Union
citizen within the meaning of Article 17(1) of the Treaty and
who is not covered by point 5 of this Article;
7. ‘persons for whom an alert has been issued for the purposes of
refusing entry’ means any third-country national for whom an
alert has been issued in the Schengen Information System (SIS)
in accordance with and for the purposes laid down in Article 96
of the Schengen Convention;
8. ‘border crossing point’ means any crossing-point authorised by the
competent authorities for the crossing of external borders;
9. ‘border control’ means the activity carried out at a border, in
accordance with and for the purposes of this Regulation, in
response exclusively to an intention to cross or the act of
crossing that border, regardless of any other consideration,
consisting of border checks and border surveillance;
10. ‘border checks’ means the checks carried out at border crossing
points, to ensure that persons, including their means of transport
and the objects in their possession, may be authorised to enter the
territory of the Member States or authorised to leave it;
11. ‘border surveillance’ means the surveillance of borders between
border crossing points and the surveillance of border crossing
points outside the fixed opening hours, in order to prevent
persons from circumventing border checks;
12. ‘second line check’ means a further check which may be carried out
in a special location away from the location at which all persons are
checked (first line);
13. ‘border guard’ means any public official assigned, in accordance
with national law, to a border crossing point or along the border or
the immediate vicinity of that border who carries out, in accordance
with this Regulation and national law, border control tasks;
14. ‘carrier’ means any natural or legal person whose profession it is to
provide transport of persons;
15. ‘residence permit’ means:
(a) all residence permits issued by the Member States according to
the uniform format laid down by Council Regulation (EC)
No 1030/2002 of 13 June 2002 laying down a uniform
format for residence permits for third-country nationals (2);
(b) all other documents issued by a Member State to third-country
nationals authorising a stay in, or re-entry into, its territory,
with the exception of temporary permits issued pending examination
of a first application for a residence permit as referred to
in point (a) or an application for asylum;
16. ‘cruise ship’ means a ship which follows a given itinerary in
accordance with a predetermined programme, which includes a
2006R0562 — EN — 05.04.2010 — 003.002 — 7
(1) OJ L 158, 30.4.2004, p. 77.
(2) OJ L 157, 15.6.2002, p. 1.
▼B
programme of tourist activities in the various ports, and which
normally neither takes passengers on nor allows passengers to
disembark during the voyage;
17. ‘pleasure boating’ means the use of pleasure boats for sporting or
tourism purposes;
18. ‘coastal fisheries’ means fishing carried out with the aid of vessels
which return every day or within 36 hours to a port situated in the
territory of a Member State without calling at a port situated in a
third country;
19. ‘threat to public health’ means any disease with epidemic potential
as defined by the International Health Regulations of the World
Health Organisation and other infectious diseases or contagious
parasitic diseases if they are the subject of protection provisions
applying to nationals of the Member States.
Article 3
Scope
This Regulation shall apply to any person crossing the internal or
external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the Community right of free
movement;
(b) the rights of refugees and persons requesting international
protection, in particular as regards non-refoulement.
TITLE II
EXTERNAL BORDERS
CHAPTER I
Crossing of external borders and conditions for entry
Article 4
Crossing of external borders
1. External borders may be crossed only at border crossing points
and during the fixed opening hours. The opening hours shall be clearly
indicated at border crossing points which are not open 24 hours a day.
Member States shall notify the list of their border crossing points to the
Commission in accordance with Article 34.
2. By way of derogation from paragraph 1, exceptions to the obligation
to cross external borders only at border crossing points and
during the fixed opening hours may be allowed:
(a) in connection with pleasure boating or coastal fishing;
(b) for seamen going ashore to stay in the area of the port where their
ships call or in the adjacent municipalities;
(c) for individuals or groups of persons, where there is a requirement of a
special nature, provided that they are in possession of the permits
required by national law and that there is no conflict with the
interests of public policy and the internal security of the Member States;
(d) for individuals or groups of persons in the event of an unforeseen
emergency situation.
3. Without prejudice to the exceptions provided for in paragraph 2 or
to their international protection obligations, Member States shall
2006R0562 — EN — 05.04.2010 — 003.002 — 8
▼B
introduce penalties, in accordance with their national law, for the
unauthorised crossing of external borders at places other than border
crossing points or at times other than the fixed opening hours. These
penalties shall be effective, proportionate and dissuasive.
Article 5
Entry conditions for third-country nationals
1. For stays not exceeding three months per six-month period, the
entry conditions for third-country nationals shall be the following:
(a) they are in possession of a valid travel document or documents
authorising them to cross the border;
▼M4
(b) they are in possession of a valid visa, if required pursuant to
Council Regulation (EC) No 539/2001 of 15 March 2001 listing
the third countries whose nationals must be in possession of visas
when crossing the external borders and those whose nationals are
exempt from that requirement (1), except where they hold a valid
residence permit or a valid long-stay visa;
▼B
(c) they justify the purpose and conditions of the intended stay, and
they have sufficient means of subsistence, both for the duration of
the intended stay and for the return to their country of origin or
transit to a third country into which they are certain to be admitted,
or are in a position to acquire such means lawfully;
(d) they are not persons for whom an alert has been issued in the SIS
for the purposes of refusing entry;
(e) they are not considered to be a threat to public policy, internal
security, public health or the international relations of any of the
Member States, in particular where no alert has been issued in
Member States' national data bases for the purposes of refusing
entry on the same grounds.
2. A non-exhaustive list of supporting documents which the border guard
may request from the third-country national in order to verify the fulfilment
of the conditions set out in paragraph 1, point c, is included in Annex I.
3. Means of subsistence shall be assessed in accordance with the
duration and the purpose of the stay and by reference to average
prices in the Member State(s) concerned for board and lodging in
budget accommodation, multiplied by the number of days stayed.
Reference amounts set by the Member States shall be notified to the
Commission in accordance with Article 34.
The assessment of sufficient means of subsistence may be based on the
cash, travellers' cheques and credit cards in the third-country national's
possession. Declarations of sponsorship, where such declarations are
provided for by national law and letters of guarantee from hosts, as
defined by national law, where the third-country national is staying
with a host, may also constitute evidence of sufficient means of
subsistence.
4. By way of derogation from paragraph 1:
▼M4
(a) third-country nationals who do not fulfil all the conditions laid
down in paragraph 1 but who hold a residence permit, a longstay
visa or a re-entry visa issued by one of the Member States
or, where required, a residence permit or a long-stay visa and a reentry
visa, shall be authorised to enter the territories of the other
Member States for transit purposes so that they may reach the
2006R0562 — EN — 05.04.2010 — 003.002 — 9
(1) OJ L 81, 21.3.2001, p. 1.
▼M4
territory of the Member State which issued the residence permit,
long-stay visa or re-entry visa, unless their names are on the
national list of alerts of the Member State whose external borders
they are seeking to cross and the alert is accompanied by
instructions to refuse entry or transit;
▼B
(b) third-country nationals who fulfil the conditions laid down in
paragraph 1, except for that laid down in point (b), and who
present themselves at the border may be authorised to enter the
territories of the Member States, if a visa is issued at the border
in accordance with Council Regulation (EC) No 415/2003 of 27
February 2003 on the issue of visas at the border, including the
issue of such visas to seamen in transit (1).
Visas issued at the border shall be recorded on a list.
If it is not possible to affix a visa in the document, it shall, exceptionally,
be affixed on a separate sheet inserted in the document. In
such a case, the uniform format for forms for affixing the visa, laid
down by Council Regulation (EC) No 333/2002 of 18 February
2002 on a uniform format for forms for affixing the visa issued
by Member States to persons holding travel documents not
recognised by the Member State drawing up the form (2), shall be
used;
(c) third-country nationals who do not fulfil one or more of the
conditions laid down in paragraph 1 may be authorised by a
Member State to enter its territory on humanitarian grounds, on
grounds of national interest or because of international obligations.
Where the third-country national concerned is the subject of an alert
as referred to in paragraph 1(d), the Member State authorising him
or her to enter its territory shall inform the other Member States
accordingly.
CHAPTER II
Control of external borders and refusal of entry
Article 6
Conduct of border checks
1. Border guards shall, in the performance of their duties, fully
respect human dignity.
Any measures taken in the performance of their duties shall be proportionate
to the objectives pursued by such measures.
2. While carrying out border checks, border guards shall not discriminate
against persons on grounds of sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation.
Article 7
Border checks on persons
1. Cross-border movement at external borders shall be subject to
checks by border guards. Checks shall be carried out in accordance
with this chapter.
The checks may also cover the means of transport and objects in the
possession of the persons crossing the border. The law of the Member
State concerned shall apply to any searches which are carried out.
2006R0562 — EN — 05.04.2010 — 003.002 — 10
(1) OJ L 64, 7.3.2003, p. 1.
(2) OJ L 53, 23.2.2002, p. 4.
▼B
2. All persons shall undergo a minimum check in order to establish
their identities on the basis of the production or presentation of their
travel documents. Such a minimum check shall consist of a rapid and
straightforward verification, where appropriate by using technical
devices and by consulting, in the relevant databases, information exclusively
on stolen, misappropriated, lost and invalidated documents, of the
validity of the document authorising the legitimate holder to cross the
border and of the presence of signs of falsification or counterfeiting.
The minimum check referred to in the first subparagraph shall be the
rule for persons enjoying the Community right of free movement.
However, on a non-systematic basis, when carrying out minimum
checks on persons enjoying the Community right of free movement,
border guards may consult national and European databases in order
to ensure that such persons do not represent a genuine, present and
sufficiently serious threat to the internal security, public policy, international
relations of the Member States or a threat to the public health.
The consequences of such consultations shall not jeopardise the right of
entry of persons enjoying the Community right of free movement into
the territory of the Member State concerned as laid down in Directive
2004/38/EC.
3. On entry and exit, third-country nationals shall be subject to
thorough checks.
(a) thorough checks on entry shall comprise verification of the
conditions governing entry laid down in Article 5(1) and, where
applicable, of documents authorising residence and the pursuit of a
professional activity. This shall include a detailed examination
covering the following aspects:
(i) verification that the third-country national is in possession of a
document which is valid for crossing the border and which
has not expired, and that the document is accompanied, where
applicable, by the requisite visa or residence permit;
(ii) thorough scrutiny of the travel document for signs of falsification
or counterfeiting;
(iii) examination of the entry and exit stamps on the travel
document of the third-country national concerned, in order
to verify, by comparing the dates of entry and exit, that the
person has not already exceeded the maximum duration of
authorised stay in the territory of the Member States;
(iv) verification regarding the point of departure and the destination
of the third-country national concerned and the
purpose of the intended stay, checking if necessary, the corresponding
supporting documents;
(v) verification that the third-country national concerned has
sufficient means of subsistence for the duration and purpose
of the intended stay, for his or her return to the country of
origin or transit to a third country into which he or she is
certain to be admitted, or that he or she is in a position to
acquire such means lawfully;
(vi) verification that the third-country national concerned, his or
her means of transport and the objects he or she is transporting
are not likely to jeopardise the public policy,
internal security, public health or international relations of
any of the Member States. Such verification shall include
direct consultation of the data and alerts on persons and,
where necessary, objects included in the SIS and in national
data files and the action to be performed, if any, as a result of
an alert;
2006R0562 — EN — 05.04.2010 — 003.002 — 11
▼M2
(aa) if the third country national holds a visa referred to in Article 5(1)(b),
the thorough checks on entry shall also comprise verification of the
identity of the holder of the visa and of the authenticity of the visa, by
consulting the Visa Information System (VIS) in accordance with
Article 18 of Regulation (EC) No 767/2008 of the European
Parliament and of the Council of 9 July 2008 concerning the Visa
Information System (VIS) and the exchange of data between Member
States on short-stay visas (VIS Regulation) (1);
(ab) by way of derogation, where:
(i) traffic of such intensity arises that the waiting time at the
border crossing point becomes excessive;
(ii) all resources have already been exhausted as regards staff,
facilities and organisation; and
(iii) on the basis of an assessment there is no risk related to
internal security and illegal immigration;
the VIS may be consulted using the number of the visa sticker in
all cases and, on a random basis, the number of the visa sticker in
combination with the verification of fingerprints.
However, in all cases where there is doubt as to the identity of the
holder of the visa and/or the authenticity of the visa, the VIS shall
be consulted systematically using the number of the visa sticker in
combination with the verification of fingerprints.
This derogation may be applied only at the border crossing point
concerned for as long as the above conditions are met;
(ac) the decision to consult the VIS in accordance with point (ab) shall
be taken by the border guard in command at the border crossing
point or at a higher level.
The Member State concerned shall immediately notify the other
Member States and the Commission of any such decision;
(ad) each Member State shall transmit once a year a report on the
application of point (ab) to the European Parliament and the
Commission, which shall include the number of third-country
nationals who were checked in the VIS using the number of the
visa sticker only and the length of the waiting time referred to in
point (ab)(i);
(ae) points (ab) and (ac) shall apply for a maximum period of three
years, beginning three years after the VIS has started operations.
The Commission shall, before the end of the second year of application
of points (ab) and (ac), transmit to the European Parliament
and to the Council an evaluation of their implementation. On the
basis of that evaluation, the European Parliament or the Council
may invite the Commission to propose appropriate amendments to
this Regulation;
▼B
(b) thorough checks on exit shall comprise:
(i) verification that the third-country national is in possession of a
document valid for crossing the border;
(ii) verification of the travel document for signs of falsification or
counterfeiting;
(iii) whenever possible, verification that the third-country national is
not considered to be a threat to public policy, internal security or
the international relations of any of the Member States;
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(1) OJ L 218, 13.8.2008, p. 60.
▼B
(c) In addition to the checks referred to in point (b) thorough checks
on exit may also comprise:
(i) verification that the person is in possession of a valid visa, if
required pursuant to Regulation (EC) No 539/2001, except
where he or she holds a valid residence permit; ►M2 such
verification may comprise consultation of the VIS in accordance
with Article 18 of Regulation (EC) No 767/2008; ◄
(ii) verification that the person did not exceed the maximum
duration of authorised stay in the territory of the Member States;
(iii) consultation of alerts on persons and objects included in the
SIS and reports in national data files;
▼M2
(d) for the purpose of identification of any person who may not fulfil, or
who may no longer fulfil, the conditions for entry, stay or residence
on the territory of the Member States, the VIS may be consulted in
accordance with Article 20 of Regulation (EC) No 767/2008.
▼B
4. Where facilities exist and if requested by the third-country
national, such thorough checks shall be carried out in a private area.
5. Third-country nationals subject to a thorough second line check
shall be given information on the purpose of, and procedure for, such a
check.
This information shall be available in all the official languages of the
Union and in the language(s) of the country or countries bordering the
Member State concerned and shall indicate that the third-country
national may request the name or service identification number of the
border guards carrying out the thorough second line check, the name of
the border crossing point and the date on which the border was crossed.
6. Checks on a person enjoying the Community right on free
movement shall be carried out in accordance with Directive
2004/38/EC.
7. Detailed rules governing the information to be registered are laid
down in Annex II.
Article 8
Relaxation of border checks
1. Border checks at external borders may be relaxed as a result of
exceptional and unforeseen circumstances. Such exceptional and
unforeseen circumstances shall be deemed to be those where unforeseeable
events lead to traffic of such intensity that the waiting time at
the border crossing point becomes excessive, and all resources have
been exhausted as regards staff, facilities and organisation.
2. Where border checks are relaxed in accordance with paragraph 1,
border checks on entry movements shall in principle take priority over
border checks on exit movements.
The decision to relax checks shall be taken by the border guard in
command at the border crossing point.
Such relaxation of checks shall be temporary, adapted to the circumstances
justifying it and introduced gradually.
3. Even in the event that checks are relaxed, the border guard shall
stamp the travel documents of third-country nationals both on entry and
exit, in accordance with Article 10.
4. Each Member State shall transmit once a year a report on the
application of this Article to the European Parliament and the
Commission.
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▼B
Article 9
Separate lanes and information on signs
1. Member States shall provide separate lanes, in particular at air
border crossing points in order to carry out checks on persons, in
accordance with Article 7. Such lanes shall be differentiated by
means of the signs bearing the indications set out in the Annex III.
Member States may provide separate lanes at their sea and land border
crossing points and at borders between Member States not applying
Article 20 at their common borders. The signs bearing the indications
set out in the Annex III shall be used if Member States provide separate
lanes at those borders.
Member States shall ensure that such lanes are clearly signposted,
including where the rules relating to the use of the different lanes are
waived as provided for in paragraph 4, in order to ensure optimal flow
levels of persons crossing the border.
2. (a) Persons enjoying the Community right of free movement are
entitled to use the lanes indicated by the sign in part A of
Annex III. They may also use the lanes indicated by the sign
in part B of Annex III.
(b) All other persons shall use the lanes indicated by the sign in
part B of Annex III.
The indications on the signs referred to in points (a) and (b) may be
displayed in such language or languages as each Member State
considers appropriate.
3. At sea and land border crossing points, Member States may
separate vehicle traffic into different lanes for light and heavy
vehicles and buses by using signs as shown in Part C of Annex III.
Member States may vary the indications on those signs where appropriate
in the light of local circumstances.
4. In the event of a temporary imbalance in traffic flows at a
particular border crossing point, the rules relating to the use of the
different lanes may be waived by the competent authorities for the
time necessary to eliminate such imbalance.
5. The adaptation of existing signs to the provisions of paragraphs 1,
2 and 3 shall be completed by 31 May 2009. Where Member States
replace existing signs or put up new ones before that date, they shall
comply with the indications provided for in those paragraphs.
Article 10
Stamping of the travel documents of third-country nationals
1. The travel documents of third-country nationals shall be systematically
stamped on entry and exit. In particular an entry or exit stamp
shall be affixed to:
(a) the documents, bearing a valid visa, enabling third-country nationals
to cross the border;
(b) the documents enabling third-country nationals to whom a visa is
issued at the border by a Member State to cross the border;
(c) the documents enabling third-country nationals not subject to a visa
requirement to cross the border.
2. The travel documents of nationals of third countries who are
members of the family of a Union citizen to whom Directive
2004/38/EC applies, but who do not present the residence card
provided for in Article 10 of that Directive, shall be stamped on
entry or exit.
2006R0562 — EN — 05.04.2010 — 003.002 — 14
▼B
The travel documents of nationals of third countries who are members
of the family of nationals of third countries enjoying the Community
right of free movement, but who do not present the residence card
provided for in Article 10 of Directive 2004/38/EC, shall be stamped
on entry or exit.
3. No entry or exit stamp shall be affixed:
(a) to the travel documents of Heads of State and dignitaries whose
arrival has been officially announced in advance through diplomatic
channels;
(b) to pilots' licences or the certificates of aircraft crew members;
(c) to the travel documents of seamen who are present within the
territory of a Member State only when their ship puts in and in
the area of the port of call;
(d) to the travel documents of crew and passengers of cruise ships who
are not subject to border checks in accordance with point 3.2.3 of
Annex VI;
(e) to documents enabling nationals of Andorra, Monaco and San
Marino to cross the border.
Exceptionally, at the request of a third-country national, insertion of an
entry or exit stamp may be dispensed with if insertion might cause
serious difficulties for that person. In that case, entry or exit shall be
recorded on a separate sheet indicating the name and passport number.
That sheet shall be given to the third-country national.
4. The practical arrangements for stamping are set out in Annex IV.
5. Whenever possible, third-country nationals shall be informed of
the border guard's obligation to stamp their travel document on entry
and exit, even where checks are relaxed in accordance with Article 8.
6. The Commission shall report to the European Parliament and the
Council by the end of 2008 on the operation of the provisions on
stamping travel documents.
Article 11
Presumption as regards fulfilment of conditions of duration of stay
1. If the travel document of a third-country national does not bear an
entry stamp, the competent national authorities may presume that the
holder does not fulfil, or no longer fulfils, the conditions of duration of
stay applicable within the Member State concerned.
2. The presumption referred to in paragraph 1 may be rebutted where
the third-country national provides, by any means, credible evidence,
such as transport tickets or proof of his or her presence outside the
territory of the Member States, that he or she has respected the
conditions relating to the duration of a short stay.
In such a case:
(a) where the third-country national is found on the territory of a
Member State applying the Schengen acquis in full, the
competent authorities shall indicate, in accordance with national
law and practice, in his or her travel document the date on
which, and the place where, he or she crossed the external border
of one of the Member States applying the Schengen acquis in full;
(b) where the third-country national is found on the territory of a
Member State in respect of which the decision contemplated in
Article 3(2) of the 2003 Act of Accession has not been taken, the
competent authorities shall indicate, in accordance with national law
and practice, in his or her travel document the date on which, and
the place where, he or she crossed the external border of such a
Member State.
2006R0562 — EN — 05.04.2010 — 003.002 — 15
▼B
In addition to the indications referred to in points (a) and (b), a form as
shown in Annex VIII may be given to the third-country national.
Member States shall inform each other and the Commission and the
Council General Secretariat of their national practices with regard to the
indications referred to in this Article.
3. Should the presumption referred to in paragraph 1 not be rebutted,
the third-country national may be expelled by the competent authorities
from the territory of the Member States concerned.
Article 12
Border surveillance
1. The main purpose of border surveillance shall be to prevent
unauthorised border crossings, to counter cross-border criminality and
to take measures against persons who have crossed the border illegally.
2. The border guards shall use stationary or mobile units to carry out
border surveillance.
That surveillance shall be carried out in such a way as to prevent and
discourage persons from circumventing the checks at border crossing
points.
3. Surveillance between border crossing points shall be carried out by
border guards whose numbers and methods shall be adapted to existing
or foreseen risks and threats. It shall involve frequent and sudden
changes to surveillance periods, so that unauthorised border crossings
are always at risk of being detected.
4. Surveillance shall be carried out by stationary or mobile units
which perform their duties by patrolling or stationing themselves at
places known or perceived to be sensitive, the aim of such surveillance
being to apprehend individuals crossing the border illegally.
Surveillance may also be carried out by technical means, including
electronic means.
▼M1
5. Additional measures governing surveillance may be adopted.
Those measures, designed to amend non-essential elements of this
Regulation by supplementing it, shall be adopted in accordance with
the regulatory procedure with scrutiny referred to in Article 33(2).
▼B
Article 13
Refusal of entry
1. A third-country national who does not fulfil all the entry
conditions laid down in Article 5(1) and does not belong to the categories
of persons referred to in Article 5(4) shall be refused entry to the
territories of the Member States. This shall be without prejudice to the
application of special provisions concerning the right of asylum and to
international protection or the issue of long-stay visas.
2. Entry may only be refused by a substantiated decision stating the
precise reasons for the refusal. The decision shall be taken by an
authority empowered by national law. It shall take effect immediately.
The substantiated decision stating the precise reasons for the refusal
shall be given by means of a standard form, as set out in Annex V,
Part B, filled in by the authority empowered by national law to refuse
entry. The completed standard form shall be handed to the third-country
national concerned, who shall acknowledge receipt of the decision to
refuse entry by means of that form.
3. Persons refused entry shall have the right to appeal. Appeals shall
be conducted in accordance with national law. A written indication of
2006R0562 — EN — 05.04.2010 — 003.002 — 16
▼B
contact points able to provide information on representatives competent
to act on behalf of the third-country national in accordance with national
law shall also be given to the third-country national.
Lodging such an appeal shall not have suspensive effect on a decision
to refuse entry.
Without prejudice to any compensation granted in accordance with
national law, the third-country national concerned shall, where the
appeal concludes that the decision to refuse entry was ill-founded, be
entitled to correction of the cancelled entry stamp, and any other cancellations
or additions which have been made, by the Member State which
refused entry.
4. The border guards shall ensure that a third-country national
refused entry does not enter the territory of the Member State
concerned.
5. Member States shall collect statistics on the number of persons
refused entry, the grounds for refusal, the nationality of the persons
refused and the type of border (land, air or sea) at which they were
refused entry. Member States shall transmit those statistics once a year
to the Commission. The Commission shall publish every two years a
compilation of the statistics provided by the Member States.
6. Detailed rules governing refusal of entry are given in Part A of
Annex V.
CHAPTER III
Staff and resources for border control and cooperation between
Member States
Article 14
Staff and resources for border control
Member States shall deploy appropriate staff and resources in sufficient
numbers to carry out border control at the external borders, in
accordance with Articles 6 to 13, in such a way as to ensure an
efficient, high and uniform level of control at their external borders.
Article 15
Implementation of controls
1. The border control provided for by Articles 6 to 13 shall be
carried out by border guards in accordance with the provisions of this
Regulation and with national law.
When carrying out that border control, the powers to instigate criminal
proceedings conferred on border guards by national law and falling
outside the scope of this Regulation shall remain unaffected.
Member States shall ensure that the border guards are specialised and
properly trained professionals. Member States shall encourage border
guards to learn languages, in particular those necessary for the
carrying-out of their tasks.
2. Member States shall notify to the Commission the list of national
services responsible for border control under their national law in
accordance with Article 34.
3. To control borders effectively, each Member State shall ensure
close and constant cooperation between its national services responsible
for border control.
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Article 16
Cooperation between Member States
1. The Member States shall assist each other and shall maintain close
and constant cooperation with a view to the effective implementation of
border control, in accordance with Articles 6 to 15. They shall exchange
all relevant information.
2. Operational cooperation between Member States in the field of
management of external borders shall be coordinated by the European
Agency for the Management of Operational Cooperation at the External
Borders of the Member States (hereinafter referred to as the Agency)
established by Regulation (EC) No 2007/2004.
3. Without prejudice to the competences of the Agency, Member
States may continue operational cooperation with other Member States
and/or third countries at external borders, including the exchange of
liaison officers, where such cooperation complements the action of
the Agency.
Member States shall refrain from any activity which could jeopardise
the functioning of the Agency or the attainment of its objectives.
Member States shall report to the Agency on the operational cooperation
referred to in the first subparagraph.
4. Member States shall provide for training on the rules for border
control and on fundamental rights. In that regard, account shall be taken
of the common training standards as established and further developed
by the Agency.
Article 17
Joint control
1. Member States which do not apply Article 20 to their common
land borders may, up to the date of application of that Article, jointly
control those common borders, in which case a person may be stopped
only once for the purpose of carrying out entry and exit checks, without
prejudice to the individual responsibility of Member States arising from
Articles 6 to 13.
To that end, Member States may conclude bilateral arrangements
between themselves.
2. Member States shall inform the Commission of any arrangements
concluded in accordance with paragraph 1.
CHAPTER IV
Specific rules for border checks
Article 18
Specific rules for the various types of border and the various means
of transport used for crossing the external borders
The specific rules set out in Annex VI shall apply to the checks carried
out at the various types of border and on the various means of transport
used for crossing border crossing points.
Those specific rules may contain derogations from Articles 5 and
7 to 13.
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Article 19
Specific rules for checks on certain categories of persons
1. The specific rules set out in Annex VII shall apply to checks on
the following categories of persons:
(a) Heads of State and the members of their delegation(s);
(b) pilots of aircraft and other crew members;
(c) seamen;
(d) holders of diplomatic, official or service passports and members of
international organisations;
(e) cross-border workers;
(f) minors.
Those specific rules may contain derogations from Articles 5 and
7 to 13.
2. Member States shall notify to the Commission the model cards
issued by their Ministries of Foreign Affairs to accredited members of
diplomatic missions and consular representations and members of their
families in accordance with Article 34.
TITLE III
INTERNAL BORDERS
CHAPTER I
Abolition of border control at internal borders
Article 20
Crossing internal borders
Internal borders may be crossed at any point without a border check on
persons, irrespective of their nationality, being carried out.
Article 21
Checks within the territory
The abolition of border control at internal borders shall not affect:
(a) the exercise of police powers by the competent authorities of the
Member States under national law, insofar as the exercise of those
powers does not have an effect equivalent to border checks; that
shall also apply in border areas. Within the meaning of the first
sentence, the exercise of police powers may not, in particular, be
considered equivalent to the exercise of border checks when the
police measures:
(i) do not have border control as an objective,
(ii) are based on general police information and experience
regarding possible threats to public security and aim, in
particular, to combat cross-border crime,
(iii) are devised and executed in a manner clearly distinct from
systematic checks on persons at the external borders,
(iv) are carried out on the basis of spot-checks;
(b) security checks on persons carried out at ports and airports by the
competent authorities under the law of each Member State, by port
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▼B
or airport officials or carriers, provided that such checks are also
carried out on persons travelling within a Member State;
(c) the possibility for a Member State to provide by law for an obligation
to hold or carry papers and documents;
(d) the obligation on third-country nationals to report their presence on
the territory of any Member State pursuant to the provisions of
Article 22 of the Schengen Convention.
Article 22
Removal of obstacles to traffic at road crossing-points at internal
borders
Member States shall remove all obstacles to fluid traffic flow at road
crossing-points at internal borders, in particular any speed limits not
exclusively based on road-safety considerations.
At the same time, Member States shall be prepared to provide for
facilities for checks in the event that internal border controls are rein-
troduced.
CHAPTER II
Temporary reintroduction of border control at internal borders
Article 23
Temporary reintroduction of border control at internal borders
1. Where there is a serious threat to public policy or internal security,
a Member State may exceptionally reintroduce border control at its
internal borders for a limited period of no more than 30 days or for
the foreseeable duration of the serious threat if its duration exceeds the
period of 30 days, in accordance with the procedure laid down in
Article 24 or, in urgent cases, with that laid down in Article 25.
The scope and duration of the temporary reintroduction of border
control at internal borders shall not exceed what is strictly necessary
to respond to the serious threat.
2. If the serious threat to public policy or internal security persists
beyond the period provided for in paragraph 1, the Member State may
prolong border control on the same grounds as those referred to in
paragraph 1 and, taking into account any new elements, for renewable
periods of up to 30 days, in accordance with the procedure laid down in
Article 26.
Article 24
Procedure for foreseeable events
1. Where a Member State is planning to reintroduce border control at
internal borders under Article 23(1), it shall as soon as possible notify
the other Member States and the Commission accordingly, and shall
supply the following information as soon as available:
(a) the reasons for the proposed reintroduction, detailing the events that
constitute a serious threat to public policy or internal security;
(b) the scope of the proposed reintroduction, specifying where border
control is to be reintroduced;
(c) the names of the authorised crossing-points;
(d) the date and duration of the proposed reintroduction;
(e) where appropriate, the measures to be taken by the other Member
States.
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▼B
2. Following the notification from the Member State concerned, and
with a view to the consultation provided for in paragraph 3, the
Commission may issue an opinion without prejudice to Article 64(1)
of the Treaty.
3. The information referred to in paragraph 1, as well as the opinion
that the Commission may provide in accordance with paragraph 2, shall
be the subject of consultations between the Member State planning to
reintroduce border control, the other Member States and the
Commission, with a view to organising, where appropriate, mutual
cooperation between the Member States and to examining the proportionality
of the measures to the events giving rise to the reintroduction
of border control and the threats to public policy or internal security.
4. The consultation referred to in paragraph 3 shall take place at least
fifteen days before the date planned for the reintroduction of border
control.
Article 25
Procedure for cases requiring urgent action
1. Where considerations of public policy or internal security in a
Member State demand urgent action to be taken, the Member State
concerned may exceptionally and immediately reintroduce border
control at internal borders.
2. The Member State reintroducing border control at internal borders
shall notify the other Member States and the Commission accordingly,
without delay, and shall supply the information referred to in Article 24
(1) and the reasons that justify the use of this procedure.
Article 26
Procedure for prolonging border control at internal borders
1. Member States may only prolong border control at internal borders
under the provisions of Article 23(2) after having notified the other
Member States and the Commission.
2. The Member State planning to prolong border control shall supply
the other Member States and the Commission with all relevant information
on the reasons for prolonging the border control at internal
borders. The provisions of Article 24(2) shall apply.
Article 27
Informing the European Parliament
The Member State concerned or, where appropriate, the Council shall
inform the European Parliament as soon as possible of the measures
taken under Articles 24, 25 and 26. As of the third consecutive prolongation
pursuant to Article 26, the Member State concerned shall, if
requested, report to the European Parliament on the need for border
control at internal borders.
Article 28
Provisions to be applied where border control is reintroduce at
internal borders
Where border control at internal borders is reintroduced, the relevant
provisions of Title II shall apply mutatis mutandis.
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Article 29
Report on the reintroduction of border control at internal borders
The Member State which has reintroduced border control at internal
borders under Article 23 shall confirm the date on which that control
is lifted and, at the same time or soon afterwards, present a report to the
European Parliament, the Council and the Commission on the reintroduction
of border control at internal borders, outlining, in particular, the
operation of the checks and the effectiveness of the reintroduction of
border control.
Article 30
Informing the public
The decision to reintroduce border control at internal borders shall be
taken in a transparent manner and the public informed in full thereof,
unless there are overriding security reasons for not doing so.
Article 31
Confidentiality
At the request of the Member State concerned, the other Member States,
the European Parliament and the Commission shall respect the confidentiality
of information supplied in connection with the reintroduction
and prolongation of border control and the report drawn up under
Article 29.
TITLE IV
FINAL PROVISIONS
▼M1
Article 32
Amendments to the Annexes
Annexes III, IV and VIII shall be amended in accordance with the
regulatory procedure with scrutiny referred to in Article 33(2).
▼B
Article 33
Committee
1. The Commission shall be assisted by a committee, hereinafter ‘the
Committee’.
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2. Where reference is made to this paragraph, Article 5a(1) to (4) and
Article 7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.
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3. The Committee shall adopt its rules of procedure.
▼M1
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Article 34
Notifications
1. Member States shall notify the Commission of:
(a) the list of residence permits;
(b) the list of their border crossing points;
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▼B
(c) the reference amounts required for the crossing of their external
borders fixed annually by the national authorities;
(d) the list of national services responsible for border control;
(e) the specimen of model cards issued by Foreign Ministries.
2. The Commission shall make the information notified in
conformity with paragraph 1 available to the Member States and the
public through publication in the Official Journal of the European
Union, C Series, and by any other appropriate means.
Article 35
Local border traffic
This Regulation shall be without prejudice to Community rules on local
border traffic and to existing bilateral agreements on local border traffic.
Article 36
Ceuta and Melilla
The provisions of this Regulation shall not affect the special rules
applying to the cities of Ceuta and Melilla, as defined in the Declaration
by the Kingdom of Spain on the cities of Ceuta and Melilla in the Final
Act to the Agreement on the Accession of the Kingdom of Spain to the
Convention implementing the Schengen Agreement of 14 June 1985 (1).
Article 37
Notification of information by the Member States
By 26 October 2006, the Member States shall notify the Commission of
national provisions relating to Article 21(c) and (d), the penalties as
referred to in Article 4(3) and the bilateral arrangements concluded in
accordance with Article 17(1). Subsequent changes to those provisions
shall be notified within five working days.
The information notified by the Member States shall be published in the
Official Journal of the European Union, C Series.
Article 38
Report on the application of Title III
The Commission shall submit to the European Parliament and the
Council by 13 October 2009 a report on the application of Title III.
The Commission shall pay particular attention to any difficulties arising
from the reintroduction of border control at internal borders. Where
appropriate, it shall present proposals aimed at resolving such diffi-
culties.
Article 39
Repeals
1. Articles 2 to 8 of the Convention implementing the Schengen
Agreement of 14 June 1985 shall be repealed with effect from 13
October 2006.
2. The following shall be repealed with effect from the date referred
to in paragraph 1:
(a) the Common Manual, including its annexes;
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(1) OJ L 239, 22.9.2000, p. 73.
▼B
(b) the decisions of the Schengen Executive Committee of 26 April
1994 (SCH/Com-ex (94) 1, rev 2), 22 December 1994 (SCH/
Com-ex (94)17, rev. 4) and 20 December 1995 (SCH/Com-ex
(95) 20, rev. 2);
(c) Annex 7 to the Common Consular Instructions;
(d) Council Regulation (EC) No 790/2001 of 24 April 2001 reserving
to the Council implementing powers with regard to certain detailed
provisions and practical procedures for carrying out border checks
and surveillance (1);
(e) Council Decision 2004/581/EC of 29 April 2004 determining the
minimum indications to be used on signs at external border crossing
points (2);
(f) Council Decision 2004/574/EC of 29 April 2004 amending the
Common Manual (3);
(g) Council Regulation (EC) No 2133/2004 of 13 December 2004 on
the requirement for the competent authorities of the Member States
to stamp systematically the travel documents of third country
nationals when they cross the external borders of the Member
States and amending the provisions of the Convention implementing
the Schengen agreement and the Common Manual to this end (4).
3. References to the Articles deleted and instruments repealed shall
be construed as references to this Regulation.
Article 40
Entry into force
This Regulation shall enter into force on 13 October 2006. However,
Article 34 shall enter into force on the day after its publication in the
Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in
the Member States in accordance with the Treaty establishing the
European Community.
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(1) OJ L 116, 26.4.2001, p. 5. Regulation amended by Decision 2004/927/EC
(OJ L 396, 31.12.2004, p. 45).
(2) OJ L 261, 6.8.2004, p. 119.
(3) OJ L 261, 6.8.2004, p. 36.
(4) OJ L 369, 16.12.2004, p. 5.
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ANNEX I
Supporting documents to verify the fulfilment of entry conditions
The documentary evidence referred to in Article 5(2) may include the following:
(a) for business trips:
(i) an invitation from a firm or an authority to attend meetings, conferences
or events connected with trade, industry or work;
(ii) other documents which show the existence of trade relations or relations
for work purposes;
(iii) entry tickets for fairs and congresses if attending one;
(b) for journeys undertaken for the purposes of study or other types of training:
(i) a certificate of enrolment at a teaching institute for the purposes of
attending vocational or theoretical courses in the framework of basic
and further training;
(ii) student cards or certificates for the courses attended;
(c) for journeys undertaken for the purposes of tourism or for private reasons:
(i) supporting documents as regards lodging:
— an invitation from the host if staying with one,
— a supporting document from the establishment providing lodging or
any other appropriate document indicating the accommodation
envisaged;
(ii) supporting documents as regards the itinerary:
confirmation of the booking of an organised trip or any other appropriate
document indicating the envisaged travel plans;
(iii) supporting documents as regards return:
a return or round-trip ticket;
(d) for journeys undertaken for political, scientific, cultural, sports or religious
events or other reasons:
invitations, entry tickets, enrolments or programmes stating wherever
possible the name of the host organisation and the length of stay or any
other appropriate document indicating the purpose of the visit.
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ANNEX II
Registration of information
At all border crossing points, all service information and any other particularly
important information shall be registered manually or electronically. The information
to be registered shall include in particular:
(a) the names of the border guard responsible locally for border checks and of
the other officers in each team;
(b) relaxation of checks on persons applied in accordance with Article 8;
(c) the issuing, at the border, of documents in place of passports and of visas;
(d) persons apprehended and complaints (criminal offences and administrative
breaches);
(e) persons refused entry in accordance with Article 13 (grounds for refusal and
nationalities);
(f) the security codes of entry and exit stamps, the identity of border guards to
whom a given stamp is assigned at any given time or shift and the information
relating to lost and stolen stamps;
(g) complaints from persons subject to checks;
(h) other particularly important police or judicial measures;
(i) particular occurrences.
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▼B
ANNEX III
Model signs indicating lanes at border crossing points
PART A
(1)
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(1) No logo is required for Norway and Iceland.
▼B
PART B
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▼B
PART C
(1)
(1)
(1)
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(1) No logo is required for Norway and Iceland.
▼B
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▼B
ANNEX IV
Affixing stamps
1. The travel documents of third-country nationals shall be systematically
stamped on entry and exit, in accordance with Article 10. The specifications
of those stamps are laid down in the Schengen Executive Committee Decision
SCH/COM-EX (94) 16 rev and SCH/Gem-Handb (93) 15 (CONFI-
DENTIAL).
2. The security codes on the stamps shall be changed at regular intervals not
exceeding one month.
3. On the entry and exit of third-country nationals subject to the visa obligation,
the stamp will, if possible, be affixed so that it covers the edge of the visa
without affecting the legibility of the indications on the visa or the security
features of the visa sticker. If several stamps must be affixed (for example in
the case of a multiple-entry visa, this shall be done on the page facing the one
on which the visa is affixed.
If that page cannot be used, the stamp shall be entered on the following page.
The machine readable zone shall not be stamped.
4. Member States shall designate national contact points responsible for
exchanging information on the security codes of the entry and exit stamps
used at border crossing points and shall inform the other Member States, the
General Secretariat of the Council and the Commission thereof. Those contact
points shall have access without delay to information regarding common entry
and exit stamps used at the external border of the Member State concerned,
and in particular to information on the following:
(a) the border crossing point to which a given stamp is assigned;
(b) the identity of the border guard to whom a given stamp is assigned at any
given time;
(c) the security code of a given stamp at any given time.
Any inquiries regarding common entry and exit stamps shall be made through
the abovementioned national contact points.
The national contact points shall also forward immediately to the other contact
points, the General Secretariat of the Council and the Commission information
regarding a change in the contact points as well as lost and stolen stamps.
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ANNEX V
PART A
Procedures for refusing entry at the border
1. When refusing entry, the competent border guard shall:
(a) fill in the standard form for refusing entry, as shown in Part B. The thirdcountry
national concerned shall sign the form and shall be given a copy
of the signed form. Where the third-country national refuses to sign, the
border guard shall indicate this refusal in the form under the section
‘comments’;
(b) affix an entry stamp on the passport, cancelled by a cross in indelible
black ink, and write opposite it on the right-hand side, also in indelible
ink, the letter(s) corresponding to the reason(s) for refusing entry, the list
of which is given on the abovementioned standard form for refusing
entry;
▼M3
(c) annul or revoke the visas, as appropriate, in accordance with the
conditions laid down in Article 34 of Regulation (EC) No 810/2009 of
the European Parliament and of the Council of 13 July 2009 establishing
a Community code on visas (Visa Code) (1);
▼B
(d) record every refusal of entry in a register or on a list stating the identity
and nationality of the third-country national concerned, the references of
the document authorising the third-country national to cross the border
and the reason for, and date of, refusal of entry;
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3. If a third-country national who has been refused entry is brought to the border
by a carrier, the authority responsible locally shall:
(a) order the carrier to take charge of the third-country national and transport
him or her without delay to the third country from which he or she was
brought, to the third country which issued the document authorising him
or her to cross the border, or to any other third country where he or she is
guaranteed admittance, or to find means of onward transportation in
accordance with Article 26 of the Schengen Convention and Council
Directive 2001/51/EC of 28 June 2001 supplementing the provisions of
Article 26 of the Convention implementing the Schengen Agreement of
14 June 1985 (2);
(b) pending onward transportation, take appropriate measures, in compliance
with national law and having regard to local circumstances, to prevent
third-country nationals who have been refused entry from entering
illegally;
4. If there are grounds both for refusing entry to a third-country national and
arresting him or her, the border guard shall contact the authorities responsible
to decide on the action to be taken in accordance with national law.
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(1) OJ L 243, 15.9.2009, p. 1.
(2) OJ L 187, 10.7.2001, p. 45.
▼B
PART B
Standard form for refusal of entry at the border
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▼B
ANNEX VI
Specific rules for the various types of border and the various means of
transport used for crossing the Member States' external borders
1. Land borders
1.1. Checks on road traffic
1.1.1. To ensure effective checks on persons, while ensuring the safety and
smooth flow of road traffic, movements at border crossing points shall
be regulated in an appropriate manner. Where necessary, Member States
may conclude bilateral agreements to channel and block traffic. They
shall inform the Commission thereof pursuant to Article 37.
1.1.2. At land borders, Member States may, where they deem appropriate and if
circumstances allow, install or operate separate lanes at certain border
crossing points, in accordance with Article 9.
Separate lanes may be dispensed with at any time by the Member States'
competent authorities, in exceptional circumstances and where traffic and
infrastructure conditions so require.
Member States may cooperate with neighbouring countries with a view to
the installation of separate lanes at external border crossing points.
1.1.3. As a general rule, persons travelling in vehicles may remain inside them
during checks. However, if circumstances so require, persons may be
requested to alight from their vehicles. Thorough checks will be carried
out, if local circumstances allow, in areas designated for that purpose. In
the interests of staff safety, checks will be carried out, where possible, by
two border guards.
1.2. Checks on rail traffic
1.2.1. Checks shall be carried out both on train passengers and on railway staff
on trains crossing external borders, including those on goods trains or
empty trains. Those checks shall be carried out in either one of the
following two ways:
— on the platform, in the first station of arrival or departure on the
territory of a Member State,
— on board the train, during transit.
Member States may conclude bilateral agreements on how to conduct
those checks. They shall inform the Commission thereof pursuant to
Article 37.
1.2.2. By way of derogation from point 1.2.1 and in order to facilitate rail
traffic flows of high-speed passenger trains, the Member States on the
itinerary of these trains from third countries may also decide, by common
agreement with third countries concerned, to carry out entry checks on
persons in trains from third countries in either one of the following ways:
— in the stations in a third country where persons board the train,
— in the stations where persons disembark within the territory of the
Member States,
— on board the train during transit between the stations on the territory
of the Member States, provided that the persons stay on board the
train in the previous station/stations.
1.2.3. With respect to high-speed trains from third countries making several
stops in the territory of the Member States, if the rail transport carrier
is in a position to board passengers exclusively for the remaining part of
the journey within the territory of the Member States, such passengers
shall be subject to entry checks either on the train or at the station of
destination except where checks have been carried out pursuant to points
1.2.1 or 1.2.2 first indent.
Persons who wish to take the train exclusively for the remaining part of
the journey within the territory of the Member States shall receive clear
notification prior to the train's departure that they will be subject to entry
checks during the journey or at the station of destination.
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▼B
1.2.4. When travelling in the opposite direction, the persons on board the train
shall be subject to exit checks under similar arrangements.
1.2.5. The border guard may order the cavities of carriages to be inspected if
necessary with the assistance of the train inspector, to ensure that persons
or objects subject to border checks are not concealed in them.
1.2.6. Where there are reasons to believe that persons who have been reported
or are suspected of having committed an offence, or third-country
nationals intending to enter illegally, are hiding on a train, the border
guard, if he or she cannot act in accordance with his national provisions,
shall notify the Member States towards or within whose territory the train
is moving.
2. Air borders
2.1. Procedures for checks at international airports
2.1.1. The competent authorities of the Member States shall ensure that the
airport operator takes the requisite measures to physically separate the
flows of passengers on internal flights from the flows of passengers on
other flights. Appropriate infrastructures shall be set in place at all international
airports to that end.
2.1.2. The place where border checks are carried out shall be determined in
accordance with the following procedure:
(a) passengers on a flight from a third country who board an internal
flight shall be subject to an entry check at the airport of arrival of the
flight from a third country. Passengers on an internal flight who
board a flight for a third country (transfer passengers) shall be
subject to an exit check at the airport of departure of the latter flight;
(b) for flights from or to third countries with no transfer passengers and
flights making more than one stop-over at the airports of the Member
States where there is no change of aircraft:
(i) passengers on flights from or to third countries where there is no
prior or subsequent transfer within the territory of the Member
States shall be subject to an entry check at the airport of entry
and an exit check at the airport of exit;
(ii) passengers on flights from or to third countries with more than
one stop-over on the territory of the Member States where there
is no change of aircraft (transit passengers), and provided that
passengers cannot board the aircraft for the leg situated within
the territory of the Member States, shall be subject to an entry
check at the airport of arrival and an exit check at the airport of
departure;
(iii) where an airline may, for flights from third countries with more
than one stop-over within the territory of the Member States,
board passengers only for the remaining leg within that territory,
passengers shall be subject to an exit check at the airport of
departure and an entry check at the airport of arrival.
Checks on passengers who, during those stop-overs, are already
on board the aircraft and have not boarded in the territory of the
Member States shall be carried out in accordance with point (b)
(ii). The reverse procedure shall apply to that category of flights
where the country of destination is a third country.
2.1.3. Border checks will normally not be carried out on the aircraft or at the
gate, unless it is justified on the basis of an assessment of the risks
related to internal security and illegal immigration. In order to ensure
that, at the airports designated as border crossing points, persons are
checked in accordance with the rules set out in Articles 6 to 13,
Member States shall ensure that the airport authorities take the
requisite measures to channel passenger traffic to facilities reserved for
checks.
Member States shall ensure that the airport operator takes the necessary
measures to prevent unauthorised persons entering and leaving the
reserved areas, for example the transit area. Checks will normally not
be carried out in the transit area, unless it is justified on the basis of an
assessment of the risks related to internal security and illegal immigration;
in particular checks in this area may be carried out on persons
2006R0562 — EN — 05.04.2010 — 003.002 — 35
▼B
subject to an airport transit visa in order to check that they are in
possession of such a visa.
2.1.4. Where, in cases of force majeure or imminent danger or on the
instructions of the authorities, an aircraft on a flight from a third
country has to land on a landing ground which is not a border
crossing point, that aircraft may continue its flight only after authorisation
from the border guards and from customs. The same shall apply where an
aircraft on a flight from a third country lands without permission. In any
event, Articles 6 to 13 shall apply to checks on persons on those aircraft.
2.2. Procedures for checks in aerodromes
2.2.1. It shall be ensured that persons are also checked, in accordance with
Articles 6 to 13, in airports which do not hold the status of international
airport under the relevant national law (aerodromes) but through which
the routing of flights from or to third countries is authorised.
2.2.2. By way of derogation from point 2.1.1 it shall not be necessary to make
appropriate arrangements in aerodromes to ensure that inflows of
passengers from internal and other flights are physically separated,
without prejudice to Regulation (EC) No 2320/2002 of the European
Parliament and of the Council of 16 December 2002 establishing
common rules in the field of civil aviation security (1). In addition,
when the volume of traffic is low, the border guards need not be
present at all times, provided that there is a guarantee that the
necessary personnel can be deployed in good time.
2.2.3. When the presence of the border guards is not assured at all times in the
aerodrome, the manager of the aerodrome shall give adequate notice to
the border guards about the arrival and the departure of aircrafts on
flights from or to third countries.
2.3. Checks on persons on private flights
2.3.1. In the case of private flights from or to third countries the captain shall
transmit to the border guards of the Member State of destination and,
where appropriate, of the Member State of first entry, prior to take-off, a
general declaration comprising inter alia a flight plan in accordance with
Annex 2 to the Convention on International Civil Aviation and information
concerning the passengers' identity.
2.3.2. Where private flights coming from a third country and bound for a
Member State make stop-overs in the territory of other Member States,
the competent authorities of the Member State of entry shall carry out
border checks and affix an entry stamp to the general declaration referred
to in point 2.3.1.
2.3.3. Where uncertainty exists whether a flight is exclusively coming from, or
solely bound for, the territories of the Member States without stop-over
on the territory of a third country, the competent authorities shall carry
out checks on persons in airports and aerodromes in accordance with
points 2.1 to 2.2.
2.3.4. The arrangements for the entry and exit of gliders, micro-light aircraft,
helicopters, small-scale aircraft capable of flying short distances only and
airships shall be laid down by national law and, where applicable, by
bilateral agreements.
3. Sea borders
3.1. General checking procedures on maritime traffic
3.1.1. Checks on ships shall be carried out at the port of arrival or departure, on
board ship or in an area set aside for the purpose, located in the
immediate vicinity of the vessel. However, in accordance with the
agreements reached on the matter, checks may also be carried out
during crossings or, upon the ship's arrival or departure, in the territory
of a third country.
2006R0562 — EN — 05.04.2010 — 003.002 — 36
(1) OJ L 355, 30.12.2002, p. 1. Regulation as amended by Regulation (EC) No 849/2004
(OJ L 158, 30.4.2004, p. 1).
▼B
The purpose of checks is to ensure that both crew and passengers fulfil
the conditions laid down in Article 5, without prejudice to Article 19(1)
(c).
3.1.2. The ship's captain or, failing that, the individual or corporation who
represents the shipowner in all matters relating to the shipowner's
duties in fitting out the vessel (shipowner's agent), shall draw up a list,
in duplicate, of the crew and of any passengers. At the latest upon
arriving in the port he or she shall give the list(s) to the border guards.
If, for reasons of force majeure, the list or lists cannot be sent to the
border guards, a copy will be sent to the appropriate border post or
shipping authority, which shall forward it without delay to the border
guards.
3.1.3. One copy of the two lists duly signed by the border guard shall be
returned to the ship's captain, who shall produce it on request when in
port.
3.1.4. The ship's captain, or failing that, the shipowner's agent shall report to the
competent authority promptly any changes to the composition of the crew
or the number of passengers.
In addition, the captain shall notify the competent authorities promptly,
and if possible even before the ship enters port, of the presence on board
of stowaways. Stowaways will, however, remain under the responsibility
of the ship's captain.
3.1.5. The ship's captain shall notify the border guards of the ship's departure in
due time and in accordance with the rules in force in the port concerned;
if he or she is unable to notify them, he or she shall advise the appropriate
shipping authority. The second copy of the previously completed
and signed list(s) shall be returned to border guards or shipping autho-
rities.
3.2. Specific check procedures for certain types of shipping
Cruise ships
3.2.1. The cruise ship's captain or, failing that, the shipowner's agent shall
transmit to the respective border guards the itinerary and the
programme of the cruise, at least 24 hours before leaving the port of
departure and before the arrival at each port in the territory of the
Member States.
3.2.2. If the itinerary of a cruise ship comprises exclusively ports situated in the
territory of the Member States, by way of derogation from Articles 4 and
7, no border checks shall be carried out and the cruise ship may dock at
ports which are not border crossing points.
Nevertheless, on the basis of an assessment of the risks related to internal
security and illegal immigration, checks may be carried out on the crew
and passengers of those ships.
3.2.3. If the itinerary of a cruise ship comprises both ports situated in the
territory of the Member States and ports situated in third countries, by
way of derogation from Article 7, border checks shall be carried out as
follows:
(a) where the cruise ship comes from a port situated in a third country
and calls for the first time at a port situated in the territory of a
Member State, crew and passengers shall be subject to entry
checks on the basis of the nominal lists of crew and passengers, as
referred to in point 3.2.4.
Passengers going ashore shall be subject to entry checks in
accordance with Article 7 unless an assessment of the risks related
to internal security and illegal immigration shows that there is no
need to carry out such checks;
(b) where the cruise ship comes from a port situated in a third country
and calls again at a port situated in the territory of a Member State,
crew and passengers shall be subject to entry checks on the basis of
the nominal lists of crew and passengers as referred to in point 3.2.4
to the extent that those lists have been modified since the cruise ship
called at the previous port situated in the territory of a Member State.
2006R0562 — EN — 05.04.2010 — 003.002 — 37
▼B
Passengers going ashore shall be subject to entry checks in
accordance with Article 7 unless an assessment of the risks related
to internal security and illegal immigration shows that there is no
need to carry out such checks;
(c) where the cruise ship comes from a port situated in a Member State
and calls at such a port, passengers going ashore shall be subject to
entry checks in accordance with Article 7 if an assessment of the
risks related to internal security and illegal immigration so requires;
(d) where a cruise ship departs from a port situated in a Member State to
a port in a third country, crew and passengers shall be subject to exit
checks on the basis of the nominal lists of crew and passengers.
If an assessment of the risks related to internal security and illegal
immigration so requires, passengers going on board shall be subject
to exit checks in accordance with Article 7;
(e) where a cruise ship departs from a port situated in a Member State to
such a port, no exit checks shall be carried out.
Nevertheless, on the basis of an assessment of the risks related to
internal security and illegal immigration, checks may be carried out
on the crew and passengers of those ships.
3.2.4. The nominal lists of crew and passengers shall include:
(a) name and surname;
(b) date of birth;
(c) nationality;
(d) number and type of travel document and, where applicable, visa
number.
The cruise ship's captain or, failing that, the shipowner's agent shall
transmit to the respective border guards the nominal lists at least 24
hours before the arrival at each port in the territory of the Member
States or, where the journey to this port lasts less than 24 hours, immediately
after the boarding is completed in the previous port.
The nominal list shall be stamped at the first port of entry into the
territory of the Member States and in all cases thereafter if the list is
modified. The nominal list shall be taken into account in the assessment
of the risks as referred to in point 3.2.3.
Pl e a s u r e b o a t i n g
3.2.5. By way of derogation from Articles 4 and 7, persons on board a pleasure
boat coming from or departing to a port situated in a Member State shall
not be subject to border checks and may enter a port which is not a
border crossing point.
However, according to the assessment of the risks of illegal immigration,
and in particular where the coastline of a third country is located in the
immediate vicinity of the territory of the Member State concerned, checks
on those persons and/or a physical search of the pleasure boat shall be
carried out.
3.2.6. By way of derogation from Article 4, a pleasure boat coming from a third
country may, exceptionally, enter a port which is not a border crossing
point. In that case, the persons on board shall notify the port authorities
in order to be authorised to enter that port. The port authorities shall
contact the authorities in the nearest port designated as a border crossing
point in order to report the vessel's arrival. The declaration regarding
passengers shall be made by lodging the list of persons on board with
the port authorities. That list shall be made available to the border guards,
at the latest upon arrival.
Likewise, if for reasons of force majeure the pleasure boat coming from a
third country has to dock in a port other than a border crossing point, the
port authorities shall contact the authorities in the nearest port designated
as a border crossing point in order to report the vessel's presence.
3.2.7. During those checks, a document containing all the technical characteristics
of the vessel and the names of the persons on board shall be handed
in. A copy of that document shall be given to the authorities in the ports
of entry and departure. As long as the vessel remains in the territorial
2006R0562 — EN — 05.04.2010 — 003.002 — 38
▼B
waters of one of the Member States, a copy of that document shall be
included amongst the ship's papers.
C oa s t a l f i s h i n g
3.2.8. By way of derogation from Articles 4 and 7, the crews of coastal
fisheries vessels which return every day or within 36 hours to the port
of registration or to any other port situated in the territory of the Member
States without docking in a port situated in the territory of a third country
shall not be systematically checked. Nevertheless, the assessment of the
risks of illegal immigration, in particular where the coastline of a third
country is located in the immediate vicinity of the territory of the
Member State concerned, shall be taken into account in order to
determine the frequency of the checks to be carried out. According to
those risks, checks on persons and/or a physical search of the vessel shall
be carried out.
3.2.9. The crews of coastal fisheries vessels not registered in a port situated in
the territory of a Member State shall be checked in accordance with the
provisions relating to seamen.
The ship's captain shall notify the competent authorities of any alteration
to the crew list and of the presence of any passengers.
Fe rry connect ions
3.2.10. Checks shall be carried out on persons on board ferry connections with
ports situated in third countries. The following rules shall apply:
(a) where possible, Member States shall provide separate lanes, in
accordance with Article 9;
(b) checks on foot passengers shall be carried out individually;
(c) checks on vehicle occupants shall be carried out while they are at the
vehicle;
(d) ferry passengers travelling by coach shall be considered as foot
passengers. Those passengers shall alight from the coach for the
checks;
(e) checks on drivers of heavy goods vehicles and any accompanying
persons shall be conducted while the occupants are at the vehicle.
Those checks will in principle be organised separately from checks
on the other passengers;
(f) to ensure that checks are carried out quickly, there shall be an
adequate number of gates;
(g) so as to detect illegal immigrants in particular, random searches shall
be made on the means of transport used by the passengers, and where
applicable on the loads and other goods stowed in the means of
transport;
(h) ferry crew members shall be dealt with in the same way as
commercial ship crew members.
4. Inland waterways shipping
4.1. ‘Inland waterways shipping involving the crossing of an external border’
covers the use, for business or pleasure purposes, of all types of boat and
floating vessels on rivers, canals and lakes.
4.2. As regards boats used for business purposes, the captain and the persons
employed on board who appear on the crew list and members of the
families of those persons who live on board shall be regarded as crew
members or equivalent.
4.3. The relevant provisions of points 3.1 to 3.2 shall apply mutatis mutandis
to checks on inland waterways shipping.
2006R0562 — EN — 05.04.2010 — 003.002 — 39
▼B
ANNEX VII
Special rules for certain categories of persons
1. Heads of State
By way of derogation from Article 5 and Articles 7 to 13, Heads of State
and the members of their delegation, whose arrival and departure have been
officially announced through diplomatic channels to the border guards, may
not be subject to border checks.
2. Pilots of aircraft and other crew members
2.1. By way of derogation from Article 5 the holders of a pilot's licence or a
crew member certificate as provided for in Annex 9 to the Civil Aviation
Convention of 7 December 1944 may, in the course of their duties and on
the basis of those documents:
(a) embark and disembark in the stop-over airport or the airport of arrival
situated in the territory of a Member State;
(b) enter the territory of the municipality of the stop-over airport or the
airport of arrival situated in the territory of a Member State;
(c) go, by any means of transport, to an airport situated in the territory of a
Member State in order to embark on an aircraft departing from that
same airport.
In all other cases, the requirements provided for by Article 5(1) shall be
fulfilled.
2.2. Articles 6 to 13 shall apply to checks on aircraft crew members. Wherever
possible, priority will be given to checks on aircraft crews. Specifically,
they will be checked either before passengers or at special locations set
aside for the purpose. By way of derogation from Article 7, crews known to
staff responsible for border controls in the performance of their duties may
be subject to random checks only.
3. Seamen
3.1. By way of derogation from Articles 4 and 7, Member States may authorise
seamen holding a seafarer's identity document issued in accordance with the
Geneva Convention of 19 June 2003 (No 185), the London Convention of
9 April 1965 and the relevant national law, to enter into the territory of the
Member States by going ashore to stay in the area of the port where their
ships call or in the adjacent municipalities without presenting themselves at
a border crossing point, on condition that they appear on the crew list,
which has previously been submitted for checking by the competent authorities,
of the ship to which they belong.
However, according to the assessment of the risks of internal security and
illegal immigration, seamen shall be subject to a check in accordance with
Article 7 by the border guards before they go ashore.
If a seaman constitutes a threat to public policy, internal security or public
health, he may be refused permission to go ashore.
3.2. Seamen who intend to stay outside the municipalities situated in the vicinity
of ports shall comply with the conditions for entry to the territory of the
Member States, as laid down in Article 5(1).
4. Holders of diplomatic, official or service passports and members of
international organisations
4.1. In view of the special privileges or immunities they enjoy, the holders of
diplomatic, official or service passports issued by third countries or their
Governments recognised by the Member States, as well as the holders of
documents issued by the international organisations listed in point 4.4 who
are travelling in the course of their duties, may be given priority over other
travellers at border crossing points even though they remain, where
applicable, subject to the requirement for a visa.
By way of derogation from Article 5(1)(c), persons holding those
documents shall not be required to prove that they have sufficient means
of subsistence.
2006R0562 — EN — 05.04.2010 — 003.002 — 40
▼B
4.2. If a person presenting himself or herself at the external border invokes
privileges, immunities and exemptions, the border guard may require him
or her to provide evidence of his or her status by producing the appropriate
documents, in particular certificates issued by the accrediting State or a
diplomatic passport or other means. If he or she has doubts, the border
guard may, in case of urgent need, apply direct to the Ministry of Foreign
Affairs.
4.3. Accredited members of diplomatic missions and of consular representations
and their families may enter the territory of the Member States on presentation
of the card referred to in Article 19(2) and of the document
authorising them to cross the border. Moreover, by way of derogation
from Article 13 border guards may not refuse the holders of diplomatic,
official or service passports entry to the territory of the Member States
without first consulting the appropriate national authorities. This shall
also apply where an alert has been entered in the SIS for such persons.
4.4. The documents issued by the international organisations for the purposes
specified in point 4.1 are in particular the following:
— United Nations laissez-passer issued to staff of the United Nations and
subordinate agencies under the Convention on Privileges and Immunities
of Specialised Agencies adopted by the United Nations General
Assembly on 21 November 1947 in New York,
— European Community (EC) laissez-passer,
— European Atomic Energy Community (Euratom) laissez-passer,
— legitimacy certificate issued by the Secretary-General of the Council of
Europe,
— documents issued pursuant to paragraph 2 of Article III of the
Agreement between the Parties to the North Atlantic Treaty regarding
the Status of their Force (military ID cards accompanied by a travel
order, travel warrant, or an individual or collective movement order) as
well as documents issued in the framework of the Partnership for Peace.
5. Cross-border workers
5.1. The procedures for checking cross-border workers are governed by the
general rules on border control, in particular Articles 7 and 13.
5.2. By way of derogation from Article 7, cross-border workers who are well
known to the border guards owing to their frequent crossing of the border at
the same border crossing point and who have not been revealed by an initial
check to be the subject of an alert in the SIS or in a national data file shall
be subject only to random checks to ensure that they hold a valid document
authorising them to cross the border and fulfil the necessary entry
conditions. Thorough checks shall be carried out on those persons from
time to time, without warning and at irregular intervals.
5.3. The provisions of point 5.2 may be extended to other categories of regular
cross-border commuters.
6. Minors
6.1. Border guards shall pay particular attention to minors, whether travelling
accompanied or unaccompanied. Minors crossing an external border shall
be subject to the same checks on entry and exit as adults, as provided for in
this Regulation.
6.2. In the case of accompanied minors, the border guard shall check that the
persons accompanying minors have parental care over them, especially
where minors are accompanied by only one adult and there are serious
grounds for suspecting that they may have been unlawfully removed
from the custody of the person(s) legally exercising parental care over
them. In the latter case, the border guard shall carry out a further investigation
in order to detect any inconsistencies or contradictions in the information
given.
6.3. In the case of minors travelling unaccompanied, border guards shall ensure,
by means of thorough checks on travel documents and supporting
documents, that the minors do not leave the territory against the wishes
of the person(s) having parental care over them.
2006R0562 — EN — 05.04.2010 — 003.002 — 41
▼B
ANNEX VIII
2006R0562 — EN — 05.04.2010 — 003.002 — 42
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC) No 2007/2004
of 26 October 2004
establishing a European Agency for the Management of Operational Cooperation at the External
Borders of the Member States of the European Union
(OJ L 349, 25.11.2004, p. 1)
Amended by:
Official Journal
No page date
►M1 Regulation (EC) No 863/2007 of the European Parliament and of the
Council of 11 July 2007
L 199 30 31.7.2007
►M2 Regulation (EU) No 1168/2011 of the European Parliament and of the
Council of 25 October 2011
L 304 1 22.11.2011
2004R2007 — EN — 12.12.2011 — 002.001 — 1
COUNCIL REGULATION (EC) No 2007/2004
of 26 October 2004
establishing a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the
European Union
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Articles 62(2)(a) and 66 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Having regard to the opinion of the European Economic and Social
Committee (2),
Whereas:
(1) Community policy in the field of the EU external borders aims at
an integrated management ensuring a uniform and high level of
control and surveillance, which is a necessary corollary to the
free movement of persons within the European Union and a
fundamental component of an area of freedom, security and
justice. To this end, the establishment of common rules on
standards and procedures for the control of external borders is
foreseen.
(2) The efficient implementation of the common rules calls for
increased coordination of the operational cooperation between
the Member States.
(3) Taking into account the experiences of the External Borders
Practitioners’ Common Unit, acting within the Council, a
specialised expert body tasked with improving the coordination
of operational cooperation between Member States in the field of
external border management should therefore be established in
the shape of a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States
of the European Union (hereinafter referred to as the Agency).
(4) The responsibility for the control and surveillance of external
borders lies with the Member States. The Agency should
facilitate the application of existing and future Community
measures relating to the management of external borders by
ensuring the coordination of Member States’ actions in the implementation
of those measures.
(5) Effective control and surveillance of external borders is a matter
of the utmost importance to Member States regardless of their
geographical position. Accordingly, there is a need for promoting
solidarity between Member States in the field of external border
management. The establishment of the Agency, assisting Member
States with implementing the operational aspects of external
border management, including return of third-country nationals
illegally present in the Member States, constitutes an important
step in this direction.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 2
(1) Opinion of 9 March 2004 (not yet published in the Official Journal).
(2) OJ C 108, 30.4.2004, p. 97.
(6) Based on a common integrated risk analysis model, the Agency
should carry out risk analyses in order to provide the Community
and the Member States with adequate information to allow for
appropriate measures to be taken or to tackle identified threats
and risks with a view to improving the integrated management of
external borders.
(7) The Agency should provide training at European level for
national instructors of border guards and additional training and
seminars related to control and surveillance at external borders
and removal of third-country nationals illegally present in the
Member States for officers of the competent national services.
The Agency may organise training activities in cooperation
with Member States on their territory.
(8) The Agency should follow up on the developments in scientific
research relevant for its field and disseminate this information to
the Commission and to the Member States.
(9) The Agency should manage lists of technical equipment provided
by the Member States, thereby contributing to the ‘pooling’ of
material resources.
(10) The Agency should also support Member States in circumstances
requiring increased technical and operational assistance at
external borders.
(11) In most Member States, the operational aspects of return of thirdcountry
nationals illegally present in the Member States fall
within the competencies of the authorities responsible for
controlling external borders. As there is a clear added value in
performing these tasks at European level, the Agency should,
subject to the Community return policy, accordingly provide
the necessary assistance for organising joint return operations of
Member States and identify best practices on the acquisition of
travel documents and the removal of third-country nationals
illegally present in the territories of the Member States.
(12) For the purpose of fulfilling its mission and to the extent required
for the accomplishment of its tasks, the Agency may cooperate
with Europol, the competent authorities of third countries and the
international organisations competent in matters covered by this
Regulation in the framework of working arrangements concluded
in accordance with the relevant provisions of the Treaty. The
Agency should facilitate the operational cooperation between
Member States and third countries in the framework of the
external relations policy of the European Union.
(13) Building upon the experiences of the External Borders Practitioners’
Common Unit and the operational and training centres
specialised in the different aspects of control and surveillance of
land, air and maritime borders respectively, which have been set
up by Member States, the Agency may itself create specialised
branches responsible for dealing with land, air and maritime
borders.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 3
(14) The Agency should be independent as regards technical matters
and have legal, administrative and financial autonomy. To that
end, it is necessary and appropriate that it should be a
Community body having legal personality and exercising the
implementing powers, which are conferred upon it by this Regu­
lation.
(15) The Commission and the Member States should be represented
within a Management Board in order to control effectively the
functions of the Agency. The Board should, where possible,
consist of the operational heads of the national services
responsible for border guard management or their representatives.
This Board should be entrusted with the necessary powers to
establish the budget, verify its execution, adopt the appropriate
financial rules, establish transparent working procedures for
decision making by the Agency and appoint the Executive
Director and his/her deputy.
(16) In order to guarantee the full autonomy and independence of the
Agency, it should be granted an autonomous budget whose
revenue comes essentially from a contribution from the
Community. The Community budgetary procedure should be
applicable as far as the Community contribution and any other
subsidies chargeable to the general budget of the European Union
are concerned. The auditing of accounts should be undertaken by
the Court of Auditors.
(17) Regulation (EC) No 1073/1999 of the European Parliament and
of the Council of 25 May 1999 concerning investigations
conducted by the European Anti-Fraud Office (OLAF) (1)
should apply without restriction to the Agency, which should
accede to the Interinstitutional Agreement of 25 May 1999
between the European Parliament, the Council of the European
Union and the Commission of the European Communities
concerning internal investigations by the European Anti-Fraud
Office (OLAF) (2).
(18) Regulation (EC) No 1049/2001 of the European Parliament and
of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents (3)
should apply to the Agency.
(19) Regulation (EC) No 45/2001 of the European Parliament and of
the Council of 18 December 2000 on the protection of individuals
with regard to the processing of personal data by the
Community institutions and bodies and on the free movement
of such data (4) applies to the processing of personal data by
the Agency.
(20) The development of the policy and legislation on external border
control and surveillance remains a responsibility of the EU institutions,
in particular the Council. Close coordination between the
Agency and these institutions should be guaranteed.
(21) Since the objectives of this Regulation, namely the need for
creating an integrated management of operational cooperation at
the external borders of the Member States of the European Union,
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 4
(1) OJ L 136, 31.5.1999, p. 1.
(2) OJ L 136, 31.5.1999, p. 15.
(3) OJ L 145, 31.5.2001, p. 43.
(4) OJ L 8, 12.1.2001, p. 1.
cannot be sufficiently achieved by the Member States and can
therefore 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
Regulation does not go beyond what is necessary in order to
achieve those objectives.
(22) This Regulation respects the fundamental rights and observes the
principles recognised by Article 6(2) of the Treaty on European
Union and reflected in the Charter of Fundamental Rights of the
European Union.
(23) As regards Iceland and Norway, this Regulation 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, which fall
within the area referred to in Article 1, point A of Council
Decision 1999/437/EC (1) on certain arrangements for the application
of that Agreement. Consequently, delegations of the
Republic of Iceland and the Kingdom of Norway should
participate as members of the Management Board of the
Agency, albeit with limited voting rights. In order to determine
the further modalities allowing for the full participation of the
Republic of Iceland and the Kingdom of Norway in the activities
of the Agency, a further arrangement should be concluded
between the Community and these States.
(24) 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 is not taking part in the adoption of this Regulation
and is not bound by it, or subject to its application. Given that
this Regulation builds upon the Schengen acquis under the
provisions of Title IV of Part Three of the Treaty establishing
the European Community, Denmark should, in accordance with
Article 5 of the said Protocol, decide within a period of six
months after the Council has adopted this Regulation whether it
will implement it in its national law or not.
(25) This Regulation constitutes a development of provisions of the
Schengen acquis in which the United Kingdom does not take
part, in accordance with Council Decision 2000/365/EC of
29 May 2000 concerning the request of the United Kingdom of
Great Britain and Northern Ireland to take part in some of the
provisions of the Schengen acquis (2). The United Kingdom is
therefore not taking part in its adoption and is not bound by it or
subject to its application.
(26) This Regulation constitutes a development of provisions of the
Schengen acquis in which Ireland does not take part, in
accordance with Council Decision 2002/192/EC of 28 February
2002 concerning Ireland’s request to take part in some of the
provisions of the Schengen acquis (3). Ireland is therefore not
taking part in its adoption and is not bound by it or subject to
its application.
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(1) OJ L 176, 10.7.1999, p. 31.
(2) OJ L 131, 1.6.2000, p. 43.
(3) OJ L 64, 7.3.2002, p. 20.
(27) The Agency should facilitate the organisation of operational
actions in which the Member States may avail themselves of
the expertise and facilities which Ireland and the United
Kingdom may be willing to offer, in accordance with modalities
to be decided on a case-by-case basis by the Management Board.
To that end, representatives of Ireland and the United Kingdom
should be invited to attend all the meetings of the Management
Board in order to allow them to participate fully in the deliberations
for the preparation of such operational actions.
(28) A controversy exists between the Kingdom of Spain and the
United Kingdom on the demarcation of the borders of Gibraltar.
(29) The suspension of the applicability of this Regulation to the
borders of Gibraltar does not imply any change in the respective
positions of the States concerned,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT MATTER
Article 1
Establishment of the Agency
1. A European Agency for the Management of Operational Cooperation
at the External Borders (the Agency) is hereby established with
a view to improving the integrated management of the external borders
of the Member States of the European Union.
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2. While considering that the responsibility for the control and
surveillance of external borders lies with the Member States, the
Agency, as a body of the Union as defined in Article 15 and in
accordance with Article 19 of this Regulation, shall facilitate and
render more effective the application of existing and future Union
measures relating to the management of external borders, in particular
the Schengen Borders Code established by Regulation (EC)
No 562/2006 (1). It shall do so by ensuring the coordination of the
actions of the Member States in the implementation of those
measures, thereby contributing to an efficient, high and uniform level
of control on persons and of surveillance of the external borders of the
Member States.
The Agency shall fulfil its tasks in full compliance with the relevant
Union law, including the Charter of Fundamental Rights of the
European Union (‘the Charter of Fundamental Rights’); the relevant
international law, including the Convention Relating to the Status of
Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’);
obligations related to access to international protection, in particular the
principle of non-refoulement; and fundamental rights, and taking into
account the reports of the Consultative Forum referred to in Article 26a
of this Regulation.
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(1) Regulation (EC) No 562/2006 of the European Parliament and of the Council
of 15 March 2006 establishing a Community Code on the rules governing the
movement of persons across borders (Schengen Borders Code) (OJ L 105,
13.4.2006, p. 1).
3. The Agency shall also provide the Commission and the Member
States with the necessary technical support and expertise in the
management of the external borders and promote solidarity between
Member States, especially those facing specific and disproportionate
pressures.
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Article 1a
Definitions
For the purposes of this Regulation, the following definitions shall
apply:
1. ‘external borders of the Member States’ means the land and sea
borders of the Member States and their airports and seaports, to
which the provisions of Community law on the crossing of external
borders by persons apply;
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1a. ‘European Border Guard Teams’ means for the purpose of
Article 3, Article 3b, Article 3c, Article 8 and Article 17, teams
to be deployed during joint operations and pilot projects; for the
purpose of Articles 8a to 8g, teams to be deployed for rapid border
interventions (‘rapid interventions’) within the meaning of Regulation
(EC) No 863/2007 (1), and for the purpose of points (ea)
and (g) of Article 2(1) and Article 5, teams to be deployed
during joint operations, pilot projects and rapid interventions;
2. ‘host Member State’ means a Member State in which a joint
operation, a pilot project or a rapid intervention takes place or
from which it is launched;
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3. ‘home Member State’ means the Member State of which a member
of the team or the guest officer is a border guard;
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4. ‘members of the teams’ means border guards of Member States
serving with the European Border Guard Teams other than those
of the host Member State;
5. ‘requesting Member State’ means a Member State whose competent
authorities request the Agency to deploy teams for rapid interventions
on its territory;
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6. ‘guest officers’ means the officers of border guard services of
Member States other than the host Member State participating in
joint operations and pilot projects.
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(1) Regulation (EC) No 863/2007 of the European Parliament and of the Council
of 11 July 2007 establishing a mechanism for the creation of Rapid Border
Intervention Teams (OJ L 199, 31.7.2007, p. 30).
CHAPTER II
TASKS
Article 2
Main tasks
1. The Agency shall perform the following tasks:
(a) coordinate operational cooperation between Member States in the
field of management of external borders;
(b) assist Member States on training of national border guards,
including the establishment of common training standards;
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(c) carry out risk analyses, including the assessment of the capacity of
Member States to face threats and pressures at the external borders;
(d) participate in the development of research relevant for the control
and surveillance of external borders;
(da) assist Member States in circumstances requiring increased technical
and operational assistance at the external borders, taking into
account that some situations may involve humanitarian
emergencies and rescue at sea;
(e) assist Member States in circumstances requiring increased technical
and operational assistance at the external borders, especially those
Member States facing specific and disproportionate pressures;
(ea) set up European Border Guard Teams that are to be deployed
during joint operations, pilot projects and rapid interventions;
(f) provide Member States with the necessary support, including, upon
request, coordination or organisation of joint return operations;
(g) deploy border guards from the European Border Guard Teams to
Member States in joint operations, pilot projects or in rapid interventions
in accordance with Regulation (EC) No 863/2007;
(h) develop and operate, in accordance with Regulation (EC)
No 45/2001, information systems that enable swift and reliable
exchanges of information regarding emerging risks at the
external borders, including the Information and Coordination
Network established by Decision 2005/267/EC (1);
(i) provide the necessary assistance to the development and operation
of a European border surveillance system and, as appropriate, to
the development of a common information sharing environment,
including interoperability of systems.
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(1) Council Decision 2005/267/EC of 16 March 2005 establishing a secure webbased
Information and Coordination Network for Member States’ Migration
Management Services (OJ L 83, 1.4.2005, p. 48).
1a. In accordance with Union and international law, no person shall
be disembarked in, or otherwise handed over to the authorities of, a
country in contravention of the principle of non-refoulement, or from
which there is a risk of expulsion or return to another country in contravention
of that principle. The special needs of children, victims of
trafficking, persons in need of medical assistance, persons in need of
international protection and other vulnerable persons shall be addressed
in accordance with Union and international law.
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2. Without prejudice to the competencies of the Agency, Member
States may continue cooperation at an operational level with other
Member States and/or third countries at external borders, where such
cooperation complements the action of the Agency.
Member States shall refrain from any activity which could jeopardise
the functioning of the Agency or the attainment of its objectives.
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Member States shall report to the Agency on those operational matters
at the external borders outside the framework of the Agency. The
Executive Director of the Agency (‘the Executive Director’) shall
inform the Management Board of the Agency (‘the Management
Board’) on those matters on a regular basis and at least once a year.
Article 2a
Code of Conduct
The Agency shall draw up and further develop a Code of Conduct
applicable to all operations coordinated by the Agency. The Code of
Conduct shall lay down procedures intended to guarantee the principles
of the rule of law and respect for fundamental rights with particular
focus on unaccompanied minors and vulnerable persons, as well as on
persons seeking international protection, applicable to all persons
participating in the activities of the Agency.
The Agency shall develop the Code of Conduct in cooperation with the
Consultative Forum referred to in Article 26a.
Article 3
Joint operations and pilot projects at the external borders
1. The Agency shall evaluate, approve and coordinate proposals for
joint operations and pilot projects made by Member States, including
the requests of Member States related to circumstances requiring
increased technical and operational assistance, especially in cases of
specific and disproportionate pressures.
The Agency may itself initiate and carry out joint operations and pilot
projects in cooperation with the Member States concerned and in
agreement with the host Member States.
It may also decide to put its technical equipment at the disposal of
Member States participating in the joint operations or pilot projects.
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Joint operations and pilot projects should be preceded by a thorough
risk analysis.
1a. The Agency may terminate, after informing the Member State
concerned, joint operations and pilot projects if the conditions to
conduct those joint operations or pilot projects are no longer fulfilled.
The Member States participating in a joint operation or pilot project
may request the Agency to terminate that joint operation or pilot project.
The home Member State shall provide for appropriate disciplinary or
other measures in accordance with its national law in case of violations
of fundamental rights or international protection obligations in the
course of a joint operation or pilot project.
The Executive Director shall suspend or terminate, in whole or in part,
joint operations and pilot projects if he/she considers that such
violations are of a serious nature or are likely to persist.
1b. The Agency shall constitute a pool of border guards called
European Border Guard Teams in accordance with Article 3b, for
possible deployment during joint operations and pilot projects referred
to in paragraph 1. It shall decide on the deployment of human resources
and technical equipment in accordance with Articles 3a and 7.
2. The Agency may operate through its specialised branches provided
for in Article 16 for the practical organisation of joint operations and
pilot projects.
3. The Agency shall evaluate the results of the joint operations and
pilot projects and transmit the detailed evaluation reports within 60 days
following the end of those operations and projects to the Management
Board, together with the observations of the Fundamental Rights Officer
referred to in Article 26a. The Agency shall make a comprehensive
comparative analysis of those results with a view to enhancing the
quality, coherence and effectiveness of future joint operations and
pilot projects and include it in its general report provided for in point
(b) of Article 20(2).
4. The Agency shall finance or co-finance the joint operations and
pilot projects referred to in paragraph 1, with grants from its budget in
accordance with the financial rules applicable to the Agency.
5. Paragraphs 1a and 4 shall apply also to rapid interventions.
Article 3a
Organisational aspects of joint operations and pilot projects
1. The Executive Director shall draw up an operational plan for the
joint operations and pilot projects referred to in Article 3(1). The
Executive Director and the host Member State, in consultation with
the Member States participating in a joint operation or pilot project,
shall agree on the operational plan detailing the organisational aspects
in due time before the envisaged beginning of that joint operation or
pilot project.
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The operational plan shall cover all aspects considered necessary for
carrying out the joint operation or the pilot project, including the
following:
(a) a description of the situation, with modus operandi and objectives of
the deployment, including the operational aim;
(b) the foreseeable duration of the joint operation or pilot project;
(c) the geographical area where the joint operation or pilot project will
take place;
(d) a description of the tasks and special instructions for the guest
officers, including on permissible consultation of databases and
permissible service weapons, ammunition and equipment in the
host Member State;
(e) the composition of the teams of guest officers, as well as the
deployment of other relevant staff;
(f) command and control provisions, including the names and ranks of
the host Member State's border guards responsible for cooperating
with the guest officers and the Agency, in particular those of the
border guards who are in command during the period of
deployment, and the place of the guest officers in the chain of
command;
(g) the technical equipment to be deployed during the joint operation or
pilot project, including specific requirements such as conditions for
use, requested crew, transport and other logistics, and financial
provisions;
(h) detailed provisions on immediate incident reporting by the Agency
to the Management Board and to relevant national public
authorities;
(i) a reporting and evaluation scheme containing benchmarks for the
evaluation report and final date of submission of the final evaluation
report in accordance with Article 3(3);
(j) regarding sea operations, specific information on the application of
the relevant jurisdiction and legislation in the geographical area
where the joint operation or pilot project takes place, including
references to international and Union law regarding interception,
rescue at sea and disembarkation;
(k) modalities of cooperation with third countries, other Union agencies
and bodies or international organisations.
2. Any amendments to or adaptations of the operational plan shall
require the agreement of the Executive Director and the host Member
State. A copy of the amended or adapted operational plan shall
immediately be sent by the Agency to the participating Member States.
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3. The Agency shall, as part of its coordinating tasks, ensure the
operational implementation of all the organisational aspects, including
the presence of a staff member of the Agency during the joint
operations and pilot projects referred to in this Article.
Article 3b
Composition and deployment of European Border Guard Teams
1. On a proposal by the Executive Director, the Management Board
shall decide by an absolute majority of its members with a right to vote
on the profiles and the overall number of border guards to be made
available for the European Border Guard Teams. The same procedure
shall apply with regard to any subsequent changes in the profiles and
the overall numbers. Member States shall contribute to the European
Border Guard Teams via a national pool on the basis of the various
defined profiles by nominating border guards corresponding to the
required profiles.
2. The contribution by Member States as regards their border guards
to specific joint operations and pilot projects for the following year shall
be planned on the basis of annual bilateral negotiations and agreements
between the Agency and Member States. In accordance with those
agreements, Member States shall make the border guards available for
deployment at the request of the Agency, unless they are faced with an
exceptional situation substantially affecting the discharge of national
tasks. Such a request shall be made at least 45 days before the
intended deployment. The autonomy of the home Member State in
relation to the selection of staff and the duration of their deployment
shall remain unaffected.
3. The Agency shall also contribute to the European Border Guard
Teams with competent border guards seconded by the Member States as
national experts pursuant to Article 17(5). The contribution by Member
States as regards the secondment of their border guards to the Agency
for the following year shall be planned on the basis of annual bilateral
negotiations and agreements between the Agency and Member States.
In accordance with those agreements, Member States shall make the
border guards available for secondment, unless that would seriously
affect the discharge of national tasks. In such situations Member
States may recall their seconded border guards.
The maximum duration of such secondments shall not exceed six
months in a 12-month period. The seconded border guards shall, for
the purpose of this Regulation, be considered as guest officers and have
the tasks and powers provided for in Article 10. The Member State
having seconded the border guards in question shall be considered as
the home Member State, as defined in point 3 of Article 1a, for the
purpose of applying Articles 3c, 10 and 10b. Other staff employed by
the Agency on a temporary basis who are not qualified to perform
border control functions shall only be deployed during joint operations
and pilot projects for coordination tasks.
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4. Members of the European Border Guard Teams shall, in the
performance of their tasks and in the exercise of their powers, fully
respect fundamental rights, including access to asylum procedures, and
human dignity. Any measures taken in the performance of their tasks
and in the exercise of their powers shall be proportionate to the
objectives pursued by such measures. While performing their tasks
and exercising their powers, they shall not discriminate against
persons on grounds of sex, racial or ethnic origin, religion or belief,
disability, age or sexual orientation.
5. In accordance with Article 8g, the Agency shall nominate a coordinating
officer for each joint operation or pilot project where members
of the European Border Guard Teams will be deployed.
The role of the coordinating officer shall be to foster cooperation and
coordination amongst host and participating Member States.
6. The Agency shall meet the costs incurred by the Member States in
making their border guards available pursuant to paragraph 1 of this
Article for the European Border Guard Teams in accordance with
Article 8h.
7. The Agency shall inform the European Parliament on an annual
basis of the number of border guards that each Member State has
committed to the European Border Guard Teams in accordance with
this Article.
Article 3c
Instructions to the European Border Guard Teams
1. During deployment of European Border Guard Teams, the host
Member State shall issue instructions to the teams in accordance with
the operational plan referred to in Article 3a(1).
2. The Agency, via its coordinating officer as referred to in
Article 3b(5), may communicate its views on the instructions referred
to in paragraph 1 to the host Member State. If it does so, the host
Member State shall take those views into consideration.
3. In accordance with Article 8g, the host Member State shall give
the coordinating officer all necessary assistance, including full access to
the European Border Guard Teams at all times throughout the
deployment.
4. Members of the European Border Guard Teams shall, while
performing their tasks and exercising their powers, remain subject to
the disciplinary measures of their home Member State.
Article 4
Risk analysis
The Agency shall develop and apply a common integrated risk analysis
model.
It shall prepare both general and tailored risk analyses to be submitted
to the Council and the Commission.
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For the purpose of risk analysis, the Agency may assess, after prior
consultation with the Member States concerned, their capacity to face
upcoming challenges, including present and future threats and pressures
at the external borders of the Member States, especially for those
Member States facing specific and disproportionate pressures. To that
end, the Agency may assess the equipment and the resources of the
Member States regarding border control. The assessment shall be based
on information given by the Member States concerned, and on the
reports and results of joint operations, pilot projects, rapid interventions
and other activities of the Agency. Those assessments are without
prejudice to the Schengen evaluation mechanism.
The results of those assessments shall be presented to the Management
Board.
For the purposes of this Article, Member States shall provide the
Agency with all necessary information regarding the situation and
possible threats at the external borders.
The Agency shall incorporate the results of a common integrated risk
analysis model in its development of the common core curricula for the
training of border guards referred to in Article 5.
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Article 5
Training
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The Agency shall provide border guards who are members of the
European Border Guard Teams with advanced training relevant to
their tasks and powers and shall conduct regular exercises with those
border guards in accordance with the advanced training and exercise
schedule referred to in the annual work programme of the Agency.
The Agency shall also take the necessary initiatives to ensure that all
border guards and other personnel of the Member States who participate
in the European Border Guard Teams, as well as the staff of the
Agency, have received, prior to their participation in operational
activities organised by the Agency, training in relevant Union and international
law, including fundamental rights and access to international
protection and guidelines for the purpose of identifying persons seeking
protection and directing them towards the appropriate facilities.
The Agency shall establish and further develop common core curricula
for the training of border guards and provide training at European level
for instructors of the national border guards of Member States, including
with regard to fundamental rights, access to international protection and
relevant maritime law.
The Agency shall draw up the common core curricula after consulting
the Consultative Forum referred to in Article 26a.
Member States shall integrate the common core curricula in the training
of their national border guards.
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The Agency shall also offer additional training courses and seminars on
subjects related to the control and surveillance of the external borders
and return of third country nationals for officers of the competent
national services of Member States.
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The Agency may organise training activities in cooperation with
Member States on their territory.
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The Agency shall establish an exchange programme enabling border
guards participating in the European Border Guard Teams to acquire
knowledge or specific know-how from experiences and good practices
abroad by working with border guards in a Member State other than
their own.
Article 6
Monitoring and contributing to research
The Agency shall proactively monitor and contribute to the developments
in research relevant for the control and surveillance of the
external borders and disseminate that information to the Commission
and the Member States.
Article 7
Technical equipment
1. The Agency may acquire, itself or in co-ownership with a Member
State, or lease technical equipment for external border control to be
deployed during joint operations, pilot projects, rapid interventions,
joint return operations or technical assistance projects in accordance
with the financial rules applicable to the Agency. Any acquisition or
leasing of equipment entailing significant costs to the Agency shall be
preceded by a thorough needs and cost/benefit analysis. Any such
expenditure shall be provided for in the Agency's budget as adopted
by the Management Board in accordance with Article 29(9). Where the
Agency acquires or leases major technical equipment, such as open sea
and coastal patrol vessels or vehicles, the following conditions shall
apply:
(a) in case of acquisition and co-ownership, the Agency shall agree
formally with one Member State that the latter will provide for
the registration of the equipment in accordance with the applicable
legislation of that Member State;
(b) in case of leasing, the equipment shall be registered in a Member
State.
On the basis of a model agreement drawn up by the Agency, the
Member State of registration and the Agency shall agree on modalities
ensuring the periods of full availability of the co-owned assets for the
Agency, as well as on the terms of use of the equipment.
The Member State of registration or the supplier of technical equipment
shall provide the necessary experts and technical crew to operate the
technical equipment in a legally sound and safe manner.
2. The Agency shall set up and keep centralised records of
equipment in a technical equipment pool composed of equipment
owned either by the Member States or by the Agency and equipment
co-owned by the Member States and the Agency for external border
control purposes. The technical equipment pool shall contain a
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minimum number per type of technical equipment as referred to in
paragraph 5 of this Article. The equipment listed in the technical
equipment pool shall be deployed during the activities referred to in
Articles 3, 8a and 9.
3. Member States shall contribute to the technical equipment pool
referred to in paragraph 2. The contribution by Member States to the
pool and deployment of the technical equipment for specific operations
shall be planned on the basis of annual bilateral negotiations and
agreements between the Agency and Member States. In accordance
with those agreements and to the extent that it forms part of the
minimum number of technical equipment for a given year, Member
States shall make their technical equipment available for deployment
at the request of the Agency, unless they are faced with an exceptional
situation substantially affecting the discharge of national tasks. Such
request shall be made at least 45 days before the intended deployment.
The contributions to the technical equipment pool shall be reviewed
annually.
4. The Agency shall manage the records of the technical equipment
pool as follows:
(a) classification by type of equipment and by type of operation;
(b) classification by owner (Member State, Agency, other);
(c) overall numbers of required equipment;
(d) crew requirements if applicable;
(e) other information, such as registration details, transportation and
maintenance requirements, national applicable export regimes,
technical instructions, or other relevant information to handle the
equipment correctly.
5. The Agency shall finance the deployment of the technical
equipment which forms part of the minimum number of technical
equipment provided by a given Member State for a given year. The
deployment of technical equipment which does not form part of the
minimum number of technical equipment shall be co-financed by the
Agency up to a maximum of 100 % of the eligible expenses, taking into
account the particular circumstances of the Member States deploying
such technical equipment.
On a proposal of the Executive Director, the Management Board shall
decide, in accordance with Article 24, on a yearly basis, on the rules
relating to technical equipment, including the required overall minimum
numbers per type of technical equipment, the conditions for deployment
and reimbursement of costs. For budgetary purposes that decision
should be taken by the Management Board by 31 March each year.
The Agency shall propose the minimum number of technical equipment
in accordance with its needs, notably in order to be able to carry out
joint operations, pilot projects, rapid interventions and joint return
operations, in accordance with the its work programme for the year in
question.
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If the minimum number of technical equipment proves to be insufficient
to carry out the operational plan agreed for joint operations, pilot
projects, rapid interventions or joint return operations, the Agency
shall revise it on the basis of justified needs and of an agreement
with the Member States.
6. The Agency shall report on the composition and the deployment
of equipment which is part of the technical equipment pool to the
Management Board on a monthly basis. Where the minimum number
of technical equipment referred to in paragraph 5 is not reached, the
Executive Director shall inform the Management Board without delay.
The Management Board shall take a decision on the prioritisation of the
deployment of the technical equipment urgently and take the appropriate
steps to remedy the identified shortcomings. It shall inform the
Commission of the identified shortcomings and the steps taken. The
Commission shall subsequently inform the European Parliament and
the Council thereof, communicating as well its own assessment.
7. The Agency shall inform the European Parliament on an annual
basis of the number of technical equipment that each Member State has
committed to the technical equipment pool in accordance with this
Article.
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Article 8
Support to Member States in circumstances requiring increased
technical and operational assistance at external borders
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1. Without prejudice to Article 78(3) of the Treaty on the Functioning
of the European Union (‘TFEU’), one or more Member States
facing specific and disproportionate pressures and confronted with
circumstances requiring increased technical and operational assistance
when implementing their obligations with regard to control and
surveillance of external borders may request the Agency for assistance.
The Agency shall in accordance with Article 3 organise the appropriate
technical and operational assistance for the requesting Member State(s).
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2. Under the circumstances referred to in paragraph 1, the Agency
can:
(a) assist on matters of coordination between two or more Member
States with a view to tackling the problems encountered at
external borders;
(b) deploy its experts to support the competent national authorities of
the Member State(s) involved for the appropriate duration;
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(c) deploy border guards from the European Border Guard Teams.
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3. The Agency may acquire technical equipment for checks and
surveillance of external borders to be used by its experts and within
the framework of rapid interventions for their duration.
Article 8a
Rapid interventions
At the request of a Member State faced with a situation of urgent and
exceptional pressure, especially the arrival at points of the external
borders of large numbers of third-country nationals trying to enter the
territory of that Member State illegally, the Agency may deploy for a
limited period one or more European Border Guard Teams (‘team(s)’)
on the territory of the requesting Member State for the appropriate
duration in accordance with Article 4 of Regulation (EC) No 863/2007.
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Article 8b
Composition of teams
1. In the event of a situation as described in Article 8a, Member
States shall, at the request of the Agency, immediately communicate
the number, names and profiles of border guards from their national
pool which they are able to make available within five days to be
members of a team. Member States shall make the border guards
available for deployment at the request of the Agency unless they are
faced with an exceptional situation substantially affecting the discharge
of national tasks.
2. When determining the composition of a team for deployment, the
Executive Director shall take into account the particular circumstances
which the requesting Member State is facing. The team shall be
composed in accordance with the operational plan referred to in
Article 8e.
Article 8c
Training and exercises
The Agency shall provide border guards who are part of the Rapid Pool,
as referred to in Article 4(2) of Regulation (EC) No 863/2007 with
advanced training relevant to their tasks and powers and shall conduct
regular exercises with those border guards in accordance with the
advanced training and exercise schedule referred to in the Agency's
annual working programme.
Article 8d
Procedure for deciding on deployment of the teams
1. A request for deployment of the teams in accordance with
Article 8a shall include a description of the situation, possible aims
and envisaged needs for the deployment. If required, the Executive
Director may send experts from the Agency to assess the situation at
the external borders of the requesting Member State.
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2. The Executive Director shall immediately inform the Management
Board of a Member State’s request for deployment of the teams.
3. When deciding on the request of a Member State, the Executive
Director shall take into account the findings of the Agency’s risk
analyses as well as any other relevant information provided by the
requesting Member State or another Member State.
4. The Executive Director shall take a decision on the request for
deployment of the teams as soon as possible and no later than five
working days from the date of the receipt of the request. The
Executive Director shall simultaneously notify the requesting Member
State and the Management Board in writing of the decision. The
decision shall state the main reasons on which it is based.
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5. If the Executive Director decides to deploy one or more teams, the
Agency together with the requesting Member State shall draw up an
operational plan in accordance with Article 8e immediately, and in any
event no later than five working days from the date of the decision.
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6. As soon as the operational plan has been agreed, the Executive
Director shall inform the Member States of the requested number and
profiles of border guards which are to be deployed in the teams. This
information shall be provided, in writing, to the national contact points
designated under Article 8f and shall indicate the date on which the
deployment is to take place. A copy of the operational plan shall also be
provided to them.
7. If the Executive Director is absent or indisposed, the decisions
related to the deployment of the teams shall be taken by the Deputy
Executive Director.
8. Member States shall make the border guards available for
deployment at the request of the Agency, unless they are faced with
an exceptional situation substantially affecting the discharge of national
tasks.
9. Deployment of the teams shall take place no later than five
working days after the date on which the operational plan is agreed
between the Executive Director and the requesting Member State.
Article 8e
Operational plan
1. The Executive Director and the requesting Member State shall
agree on an operational plan detailing the precise conditions for
deployment of the teams. The operational plan shall include the
following:
(a) description of the situation, with modus operandi and objectives of
the deployment, including the operational aim;
(b) the foreseeable duration of deployment of the teams;
(c) the geographical area of responsibility in the requesting Member
State where the teams will be deployed;
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(d) description of tasks and special instructions for members of the
teams, including on permissible consultation of databases and
permissible service weapons, ammunition and equipment in the
host Member State;
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(e) the composition of the teams, as well as the deployment of other
relevant staff;
(f) command and control provisions, including the names and ranks of
the border guards of the host Member State responsible for cooperating
with the teams, in particular of those border guards who are
in command of the teams during the period of deployment, and the
place of the teams in the chain of command;
(g) the technical equipment to be deployed together with the teams,
including specific requirements such as conditions for use,
requested crew, transport and other logistics, and financial
provisions;
(h) detailed provisions on immediate incident reporting by the Agency
to the Management Board and to relevant national public
authorities;
(i) a reporting and evaluation scheme containing benchmarks for the
evaluation report and final date of submission of the final evaluation
report in accordance with Article 3(3);
(j) regarding sea operations, specific information on the application of
the relevant jurisdiction and legislation in the geographical area
where the rapid intervention takes place, including references to
international and Union law regarding interception, rescue at sea
and disembarkation;
(k) modalities of cooperation with third countries, other Union agencies
and bodies or international organisations.
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2. Any amendments to or adaptations of the operational plan shall
require the agreement of both the Executive Director and the requesting
Member State. A copy of the amended or adapted operational plan shall
immediately be sent by the Agency to the participating Member States.
Article 8f
National contact point
Member States shall designate a national contact point for communication
with the Agency on all matters pertaining to the teams. The
national contact point shall be reachable at all times.
Article 8g
Coordinating Officer
1. The Executive Director shall appoint one or more experts from the
staff of the Agency to be deployed as coordinating officer. The
Executive Director shall notify the host Member State of the
appointment.
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2. The coordinating officer shall act on behalf of the Agency in all
aspects of the deployment of the teams. In particular, the coordinating
officer shall:
(a) act as an interface between the Agency and the host Member State;
(b) act as an interface between the Agency and the members of the
teams, providing assistance, on behalf of the Agency, on all issues
relating to the conditions for their deployment with the teams;
(c) monitor the correct implementation of the operational plan;
(d) report to the Agency on all aspects of the deployment of the teams.
3. In accordance with Article 25(3)f, the Executive Director may
authorise the coordinating officer to assist in resolving any disagreement
on the execution of the operational plan and deployment of the teams.
4. In discharging his duties, the coordinating officer shall take
instructions only from the Agency.
Article 8h
Costs
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1. The Agency shall fully meet the following costs incurred by
Member States in making available their border guards for the
purposes mentioned in Article 3(1b), Article 8a and Article 8c:
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(a) travel costs from the home Member State to the host Member State
and from the host Member State to the home Member State;
(b) costs related to vaccinations;
(c) costs related to special insurance needs;
(d) costs related to health care;
(e) daily subsistence allowances, including accommodation costs;
(f) costs related to the Agency’s technical equipment.
2. Detailed rules concerning the payment of the daily subsistence
allowance of members of the teams shall be established by the
Management Board.
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Article 9
Return cooperation
1. Subject to the return policy of the Union, and in particular
Directive 2008/115/EC of the European Parliament and of the Council
of 16 December 2008 on common standards and procedures in Member
States for returning illegally staying third-country nationals (1), and
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(1) OJ L 348, 24.12.2008, p. 98.
without entering into the merits of return decisions, the Agency shall
provide the necessary assistance, and at the request of the participating
Member States ensure the coordination or the organisation of joint
return operations of Member States, including through the chartering
of aircraft for the purpose of such operations. The Agency shall
finance or co-finance the operations and projects referred to in this
paragraph with grants from its budget in accordance with the financial
rules applicable to the Agency. The Agency may also use financial
means of the Union available in the field of return. The Agency shall
ensure that in its grant agreements with Member States any financial
support is conditional upon the full respect for the Charter of Fundamental
Rights.
1a. The Agency shall develop a Code of Conduct for the return of
illegally present third-country nationals which shall apply during all
joint return operations coordinated by the Agency, describing common
standardised procedures which should simplify the organisation of joint
return operations and assure return in a humane manner and with full
respect for fundamental rights, in particular the principles of human
dignity, prohibition of torture and of inhuman or degrading treatment
or punishment, the right to liberty and security and the rights to the
protection of personal data and non-discrimination.
1b. The Code of Conduct shall in particular pay attention to the
obligation set out in Article 8(6) of Directive 2008/115/EC to provide
for an effective forced-return monitoring system and to the Fundamental
Rights Strategy referred to in Article 26a(1) of this Regulation. The
monitoring of joint return operations should be carried out on the
basis of objective and transparent criteria and cover the whole joint
return operation from the pre-departure phase until the hand-over of
the returnees in the country of return.
1c. Member States shall regularly inform the Agency of their needs
for assistance or coordination by the Agency. The Agency shall draw up
a rolling operational plan to provide the requesting Member States with
the necessary operational support, including technical equipment
referred to in Article 7(1). The Management Board shall decide in
accordance with Article 24 on a proposal of the Executive Director,
on the content and modus operandi of the rolling operational plan.
2. The Agency shall cooperate with the competent authorities of the
third countries referred to in Article 14 to identify best practices on the
acquisition of travel documents and the return of illegally present thirdcountry
nationals.
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Article 10
Tasks and powers of guest officers
1. Guest officers shall have the capacity to perform all tasks and
exercise all powers for border checks or border surveillance in
accordance with Regulation (EC) No 562/2006 of the European
Parliament and of the Council of 15 March 2006 establishing a
Community Code on the rules governing the movement of persons
across borders (Schengen Borders Code) (1), and that are necessary
for the realisation of the objectives of that Regulation.
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(1) OJ L 105, 13.4.2006, p. 1.
2. While performing their tasks and exercising their powers, guest
officers shall comply with Union and international law, and shall
observe fundamental rights and the national law of the host Member
State.
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3. Guest officers may only perform tasks and exercise powers under
instructions from and, as a general rule, in the presence of border guards
of the host Member State.
4. Guest officers shall wear their own uniform while performing their
tasks and exercising their powers. They shall wear a blue armband with
the insignia of the European Union and the Agency on their uniforms,
identifying them as participating in a joint operation or pilot project. For
the purposes of identification vis-à-vis the national authorities of the
host Member State and its citizens, guest officers shall at all times
carry an accreditation document, as provided for in Article 10a,
which they shall present on request.
5. By way of derogation from paragraph 2, while performing their
tasks and exercising their powers, guest officers may carry service
weapons, ammunition and equipment as authorised according to the
home Member State's national law. However, the host Member State
may prohibit the carrying of certain service weapons, ammunition and
equipment, provided that its own legislation applies the same
prohibition to its own border guards. The host Member State shall, in
advance of the deployment of the guest officers, inform the Agency of
the permissible service weapons, ammunition and equipment and of the
conditions for their use. The Agency shall make this information
available to Member States.
6. By way of derogation from paragraph 2, while performing their
tasks and exercising their powers, guest officers shall be authorised to
use force, including service weapons, ammunition and equipment, with
the consent of the home Member State and the host Member State, in
the presence of border guards of the host Member State and in
accordance with the national law of the host Member State.
7. By way of derogation from paragraph 6, service weapons,
ammunition and equipment may be used in legitimate self-defence
and in legitimate defence of guest officers or of other persons, in
accordance with the national law of the host Member State.
8. For the purpose of this Regulation, the host Member State may
authorise guest officers to consult its national and European databases
which are necessary for border checks and surveillance. The guest
officers shall consult only those data which are required for performing
their tasks and exercising their powers. The host Member State shall, in
advance of the deployment of the guest officers, inform the Agency of
the national and European databases which may be consulted. The
Agency shall make this information available to all Member States
participating in the deployment.
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2004R2007 — EN — 12.12.2011 — 002.001 — 23
9. The consultation as referred to in paragraph 8 shall be carried out
in accordance with Community law and the national law of the host
Member State in the area of data protection.
10. Decisions to refuse entry in accordance with Article 13 of Regulation
(EC) No 562/2006 shall be taken only by border guards of the
host Member State.
Article 10a
Accreditation document
1. The Agency shall, in cooperation with the host Member State,
issue a document in the official language of the host Member State
and another official language of the institutions of the European
Union to guest officers for the purpose of identifying them and as
proof of the holder’s rights to perform the tasks and exercise the
powers as referred to in Article 10(1). The document shall include the
following features of the guest officer:
(a) name and nationality;
(b) rank; and
(c) a recent digitised photograph.
2. The document shall be returned to the Agency at the end of the
joint operation or pilot project.
Article 10b
Civil liability
1. Where guest officers are operating in a host Member State, that
Member State shall be liable in accordance with its national law for any
damage caused by them during their operations.
2. Where such damage is caused by gross negligence or wilful
misconduct, the host Member State may approach the home Member
State in order to have any sums it has paid to the victims or persons
entitled on their behalf reimbursed by the home Member State.
3. Without prejudice to the exercise of its rights vis-à-vis third
parties, each Member State shall waive all its claims against the host
Member State or any other Member State for any damage it has
sustained, except in cases of gross negligence or wilful misconduct.
4. Any dispute between Member States relating to the application of
paragraphs 2 and 3 which cannot be resolved by negotiations between
them shall be submitted by them to the Court of Justice of the European
Communities in accordance with Article 239 of the Treaty.
5. Without prejudice to the exercise of its rights vis-à-vis third
parties, the Agency shall meet costs related to damage caused to the
Agency’s equipment during deployment, except in cases of gross
negligence or wilful misconduct.
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Article 10c
Criminal liability
During the deployment of a joint operation or a pilot project, guest
officers shall be treated in the same way as officials of the host
Member State with regard to any criminal offences that might be
committed against them or by them.
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Article 11
Information exchange systems
The Agency may take all necessary measures to facilitate the exchange
of information relevant to its tasks with the Commission and the
Member States and, where appropriate, the Union agencies referred to
in Article 13. It shall develop and operate an information system
capable of exchanging classified information with those actors,
including personal data referred to in Articles 11a, 11b and 11c.
The Agency may take all necessary measures to facilitate the exchange
of information relevant for its tasks with the United Kingdom and
Ireland if it relates to the activities in which they participate in
accordance with Article 12 and Article 20(5).
Article 11a
Data protection
Regulation (EC) No 45/2001 shall apply to the processing of personal
data by the Agency.
The Management Board shall establish measures for the application of
Regulation (EC) No 45/2001 by the Agency, including those concerning
the Data Protection Officer of the Agency. Those measures shall be
established after consultation of the European Data Protection
Supervisor. Without prejudice to Articles 11b and 11c, the Agency
may process personal data for administrative purposes.
Article 11b
Processing of personal data in the context of joint return operations
1. In performing its tasks of organising and coordinating the joint
return operations of Member States referred to in Article 9, the Agency
may process personal data of persons who are subject to such joint
return operations.
2. The processing of such personal data shall respect the principles of
necessity and proportionality. In particular, it shall be strictly limited to
those personal data which are required for the purposes of the joint
return operation.
3. The personal data shall be deleted as soon as the purpose for
which they have been collected has been achieved and no later than
10 days after the end of the joint return operation.
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2004R2007 — EN — 12.12.2011 — 002.001 — 25
4. Where the personal data are not transferred to the carrier by a
Member State, the Agency may transfer such data.
5. This Article shall be applied in accordance with the measures
referred to in Article 11a.
Article 11c
Processing of personal data collected during joint operations, pilot
projects and rapid interventions
1. Without prejudice to the competence of Member States to collect
personal data in the context of joint operations, pilot projects and rapid
interventions, and subject to the limitations set out in paragraphs 2 and
3, the Agency may further process personal data collected by the
Member States during such operational activities and transmitted to
the Agency in order to contribute to the security of the external
borders of the Member States.
2. Such further processing of personal data by the Agency shall be
limited to personal data regarding persons who are suspected, on
reasonable grounds, by the competent authorities of the Member
States of involvement in cross-border criminal activities, in facilitating
illegal migration activities or in human trafficking activities as defined
in points (a) and (b) of Article 1(1) of Council Directive 2002/90/EC of
28 November 2002 defining the facilitation of unauthorised entry,
transit and residence (1).
3. Personal data referred to in paragraph 2 shall be further processed
by the Agency only for the following purposes:
(a) the transmission, on a case-by-case basis, to Europol or other Union
law enforcement agencies, subject to Article 13;
(b) the use for the preparation of risk analyses referred to in Article 4.
In the result of the risk-analyses, data shall be depersonalised.
4. The personal data shall be deleted as soon as they have been
transmitted to Europol or other Union agencies or used for the preparation
of risk analyses referred to in Article 4. The term of storage shall
in any event not exceed three months after the date of the collection of
those data.
5. The processing of such personal data shall respect the principles of
necessity and proportionality. The personal data shall not be used by the
Agency for the purpose of investigations, which remain under the
responsibility of the competent authorities of the Member States.
In particular, it shall be strictly limited to those personal data which are
required for the purposes referred to in paragraph 3.
6. Without prejudice to Regulation (EC) No 1049/2001, onward
transmission or other communication of such personal data processed
by the Agency to third countries or other third parties shall be
prohibited.
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(1) OJ L 328, 5.12.2002, p. 17.
7. This Article shall be applied in accordance with the measures
referred to in Article 11a.
Article 11d
Security rules on the protection of classified information and nonclassified
sensitive information
1. The Agency shall apply the Commission's rules on security as set
out in the Annex to Commission Decision 2001/844/EC, ECSC,
Euratom of 29 November 2001 amending its internal Rules of
Procedure (1). Those rules shall apply, inter alia, to the exchange,
processing and storage of classified information.
2. The Agency shall apply the security principles relating to the
processing of non-classified sensitive information as set out in the
Decision referred to in paragraph 1 of this Article and as implemented
by the Commission. The Management Board shall establish measures
for the application of those security principles.
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Article 12
Cooperation with Ireland and the United Kingdom
1. The Agency shall facilitate operational cooperation of the Member
States with Ireland and the United Kingdom in matters covered by its
activities and to the extent required for the fulfilment of its tasks set out
in Article 2(1).
2. Support to be provided by the Agency pursuant to Article 2(1)(f)
shall cover the organisation of joint return operations of Member States
in which Ireland or the United Kingdom, or both, also participate.
3. The application of this Regulation to the borders of Gibraltar shall
be suspended until the date on which an agreement is reached on the
scope of the measures concerning the crossing by persons of the
external borders of the Member States.
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Article 13
Cooperation with Union agencies and bodies and international
organisations
The Agency may cooperate with Europol, the European Asylum
Support Office, the European Union Agency for Fundamental Rights
(‘the Fundamental Rights Agency’), other Union agencies and bodies,
and the international organisations competent in matters covered by this
Regulation within the framework of working arrangements concluded
with those bodies, in accordance with the relevant provisions of the
TFEU and the provisions on the competence of those bodies. In
every case the Agency shall inform the European Parliament of any
such arrangements.
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(1) OJ L 317, 3.12.2001, p. 1.
Onward transmission or other communication of personal data
processed by the Agency to other Union agencies or bodies shall be
subject to specific working arrangements regarding the exchange of
personal data and subject to the prior approval of the European Data
Protection Supervisor.
The Agency may also, with the agreement of the Member State(s)
concerned, invite observers of Union agencies and bodies or international
organisations to participate in its activities referred to in
Articles 3, 4 and 5, to the extent that their presence is in accordance
with the objectives of those activities, may contribute to the
improvement of cooperation and the exchange of best practices, and
does not affect the overall safety of those activities. The participation
of those observers may take place only with the agreement of the
Member State(s) concerned regarding the activities referred to in
Articles 4 and 5 and only with the agreement of the host Member
State regarding those referred to in Article 3. Detailed rules on the
participation of observers shall be included in the operational plan
referred to in Article 3a(1). Those observers shall receive the appropriate
training from the Agency prior to their participation.
Article 14
Facilitation of operational cooperation with third countries and
cooperation with competent authorities of third countries
1. In matters covered by its activities and to the extent required for
the fulfilment of its tasks, the Agency shall facilitate operational cooperation
between Member States and third countries, within the
framework of the external relations policy of the Union, including
with regard to human rights.
The Agency and the Member States shall comply with norms and
standards at least equivalent to those set by Union legislation also
when cooperation with third countries takes place on the territory of
those countries.
The establishment of cooperation with third countries shall serve to
promote European border management standards, also covering
respect for fundamental rights and human dignity.
2. The Agency may cooperate with the authorities of third countries
competent in matters covered by this Regulation within the framework
of working arrangements concluded with those authorities, in
accordance with the relevant provisions of the TFEU. Those working
arrangements shall be purely related to the management of operational
cooperation.
3. The Agency may deploy its liaison officers, who should enjoy the
highest possible protection to carry out their duties, in third countries.
They shall form part of the local or regional cooperation networks of
immigration liaison officers of the Member States set up pursuant to
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Council Regulation (EC) No 377/2004 of 19 February 2004 on the
creation of an immigration liaison officers network (1). Liaison
officers shall only be deployed to third countries in which border
management practices comply with minimum human rights standards.
Their deployment shall be approved by the Management Board. Within
the framework of the external relations policy of the Union, priority for
deployment should be given to those third countries, which on the basis
of risk analysis constitute a country of origin or transit regarding illegal
migration. On a reciprocal basis the Agency may receive liaison officers
posted by those third countries also, for a limited period of time. The
Management Board shall adopt, on a proposal of the Executive Director
and in accordance with Article 24, the list of priorities on a yearly basis.
4. The tasks of the Agency's liaison officers shall include, in
compliance with Union law and in accordance with fundamental
rights, establishing and maintaining contacts with the competent
authorities of the third country to which they are assigned with a
view to contributing to the prevention of and fight against illegal immigration
and the return of illegal migrants.
5. The Agency may benefit from Union funding in accordance with
the provisions of the relevant instruments supporting the external
relations policy of the Union. It may launch and finance technical
assistance projects in third countries regarding matters covered by this
Regulation.
6. The Agency may also, with the agreement of the Member State(s)
concerned invite observers from third countries to participate in its
activities referred to in Articles 3, 4 and 5, to the extent that their
presence is in accordance with the objectives of those activities, may
contribute to improving cooperation and the exchange of best practices,
and does not affect the overall safety of those activities. The participation
of those observers may take place only with the agreement of the
Member State(s) concerned regarding the activities referred to in
Articles 4 and 5 and only with the agreement of the host Member
State regarding those referred to in Article 3. Detailed rules on the
participation of observers shall be included in the operational plan
referred to in Article 3a(1). Those observers shall receive the appropriate
training from the Agency prior to their participation.
7. When concluding bilateral agreements with third countries as
referred to in Article 2(2), Member States may include provisions
concerning the role and competence of the Agency, in particular
regarding the exercise of executive powers by members of the teams
deployed by the Agency during the joint operations or pilot projects
referred to in Article 3.
8. The activities referred to in paragraphs 2 and 3 of this Article shall
be subject to receiving a prior opinion of the Commission, and the
European Parliament shall be fully informed of those activities as
soon as possible.
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(1) OJ L 64, 2.3.2004, p. 1.
CHAPTER III
STRUCTURE
Article 15
Legal status and location
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The Agency shall be a body of the Union. It shall have legal
personality.
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In each of the Member States, the Agency shall enjoy the most
extensive legal capacity accorded to legal persons under their laws. It
may, in particular, acquire or dispose of movable and immovable
property and may be party to legal proceedings.
The Agency shall be independent in relation to technical matters.
It shall be represented by its Executive Director.
The seat of the Agency shall be decided by unanimity of the Council.
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Article 15a
Headquarters Agreement
The necessary arrangements concerning the accommodation to be
provided for the Agency in the Member State in which the Agency
has its seat and the facilities to be made available by that Member
State, as well as the specific rules applicable to the Executive
Director, the Deputy Executive Director, the members of the
Management Board, the staff of the Agency and members of their
families, in that Member State shall be laid down in a Headquarters
Agreement between the Agency and the Member State in which the
Agency has its seat. The Headquarters Agreement shall be concluded
after obtaining the approval of the Management Board. The Member
State in which the Agency has its seat should provide the best possible
conditions to ensure proper functioning of the Agency, including multilingual,
European-oriented schooling and appropriate transport
connections.
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Article 16
Specialised branches
The Management Board of the Agency shall evaluate the need for, and
decide upon the setting up of, specialised branches in the Member
States, subject to their consent, taking into account that due priority
should be given to the operational and training centres already established
and specialised in the different aspects of control and surveillance
of the land, air and maritime borders respectively.
The specialised branches of the Agency shall develop best practices
with regard to the particular types of external borders for which they
are responsible. The Agency shall ensure the coherence and uniformity
of such best practices.
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Each specialised branch shall submit a detailed annual report to the
Executive Director of the Agency on its activities and shall provide
any other type of information relevant for the coordination of operational
cooperation.
Article 17
Staff
1. The Staff Regulations of officials of the European Communities,
the Conditions of employment of other servants of the European
Communities and the rules adopted jointly by the institutions of the
European Communities for the purposes of applying those Regulations
and Conditions shall apply to the Agency’s staff.
2. The powers conferred on the appointing authority by the Staff
Regulations, and by the Conditions of employment of other servants,
shall be exercised by the Agency in respect of its own staff.
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3. For the purpose of implementing Article 3b(5) only a staff
member of the Agency subject to the Staff Regulations of Officials of
the European Union or to Title II of the Conditions of employment of
other servants of the European Union may be designated as coordinating
officer in accordance with Article 8g. For the purpose of implementing
Article 3b(3), only national experts seconded by a Member State to the
Agency may be designated for attachment to the European Border
Guard Teams. The Agency shall designate those national experts who
shall be attached to the European Border Guard Teams in accordance
with that Article.
4. The Management Board shall adopt the necessary implementing
measures in agreement with the Commission pursuant to Article 110 of
the Staff Regulations of Officials of the European Union.
5. The Management Board may adopt provisions to allow national
experts from Member States to be seconded to the Agency. Those
provisions shall take into account the requirements of Article 3b(3),
in particular the fact that they are considered as guest officers and
have the tasks and powers provided for in Article 10. They shall
include provisions on the conditions of deployment.
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Article 18
Privileges and immunities
The Protocol on the privileges and immunities of the European Communities
shall apply to the Agency.
Article 19
Liability
1. The contractual liability of the Agency shall be governed by the
law applicable to the contract in question.
2. The Court of Justice of the European Communities shall have
jurisdiction to give judgment pursuant to any arbitration clause
contained in a contract concluded by the Agency.
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2004R2007 — EN — 12.12.2011 — 002.001 — 31
3. In the case of non-contractual liability, the Agency shall, in
accordance with the general principles common to the laws of the
Member States, make good any damage caused by its departments or
by its servants in the performance of their duties.
4. The Court of Justice shall have jurisdiction in disputes relating to
compensation for the damage referred to in paragraph 3.
5. The personal liability of its servants towards the Agency shall be
governed by the provisions laid down in the Staff Regulations or
Conditions of employment applicable to them.
Article 20
Powers of the Management Board
1. The Agency shall have a Management Board.
2. The Management Board shall:
(a) appoint the Executive Director on a proposal from the Commission
in accordance with Article 26;
(b) before 31 March each year, adopt the general report of the Agency
for the previous year and forward it by 15 June at the latest to the
European Parliament, the Council, the Commission, the European
Economic and Social Committee and the Court of Auditors. The
general report shall be made public;
(c) before 30 September each year, and after receiving the opinion of
the Commission, adopt, by a three-quarters majority of its members
with a right to vote, the Agency’s programme of work for the
coming year and forward it to the European Parliament, the
Council and the Commission; this programme of work shall be
adopted according to the annual Community budgetary procedure
and the Community legislative programme in relevant areas of the
management of external borders;
(d) establish procedures for taking decisions related to the operational
tasks of the Agency by the Executive Director;
(e) carry out its functions relating to the Agency’s budget pursuant to
Articles 28, 29(5), (9) and (11), Article 30(5) and Article 32;
(f) exercise disciplinary authority over the Executive Director and over
the Deputy Director, in agreement with the Executive Director;
(g) establish its Rules of Procedure;
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(h) establish the organisational structure of the Agency and adopt the
Agency's staff policy, in particular the multiannual staff policy plan.
In accordance with the relevant provisions of the Commission
Regulation (EC, Euratom) No 2343/2002 of 19 November 2002
on the framework Financial Regulation for the bodies referred to
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in Article 185 of Council Regulation (EC, Euratom) No 1605/2002
on the Financial Regulation applicable to the general budget of the
European Communities (1) the multiannual staff policy plan shall be
submitted to the Commission and the budgetary authority after
receiving a favourable opinion of the Commission;
(i) adopt the Agency's multiannual plan aiming at outlining the future
long term strategy regarding the activities of the Agency.
▼B
3. Proposals for decisions on specific activities to be carried out at,
or in the immediate vicinity of, the external border of any particular
Member State shall require a vote in favour of their adoption by the
Member of the Management Board representing that Member State.
▼M2
4. The Management Board may advise the Executive Director on any
matter strictly related to the development of operational management of
the external borders, including activities related to research provided for
in Article 6.
▼B
5. Should Ireland and/or the United Kingdom request to participate in
the Agency’s activities, the Management Board shall decide thereon.
The Management Board shall take its decision on a case-by-case basis
by an absolute majority of its members with a right to vote. In its
decision, the Management Board shall consider if the participation of
Ireland and/or the United Kingdom contributes to the achievement of
the activity in question. The decision shall set out the financial
contribution of Ireland and/or the United Kingdom to the activity for
which a request for participation has been made.
6. The Management Board shall forward annually to the budgetary
authority any information relevant to the outcome of the evaluation
procedures.
7. The Management Board may establish an Executive Bureau to
assist it and the Executive Director with regard to the preparation of
the decisions, programmes and activities to be adopted by the
Management Board and when necessary, because of urgency, to take
certain provisional decisions on behalf of the Management Board.
Article 21
Composition of the Management Board
1. Without prejudice to paragraph 3, the Management Board shall be
composed of one representative of each Member State and two representatives
of the Commission. To this effect, each Member State shall
appoint a member of the Management Board as well as an alternate who
will represent the member in his/her absence. The Commission shall
appoint two members and their alternates. The duration of the terms of
office shall be four years. ►M2 The terms of office shall be
extendable. ◄
2. The Management Board members shall be appointed on the basis
of their degree of high level relevant experience and expertise in the
field of operational cooperation on border management.
▼M2
2004R2007 — EN — 12.12.2011 — 002.001 — 33
(1) OJ L 357, 31.12.2002, p. 72.
3. Countries associated with the implementation, application and
development of the Schengen acquis shall participate in the Agency.
They shall have one representative and one alternate each in the
Management Board. Under the relevant provisions of their association
agreements, arrangements have been developed that specify the nature
and extent of, and the detailed rules for, the participation by those
countries in the work of the Agency, including provisions on
financial contributions and staff.
▼B
Article 22
Chairmanship of the Management Board
1. The Management Board shall elect a Chairperson and a Deputy
Chairperson from among its members. The Deputy Chairperson shall
ex-officio replace the Chairperson in the event of his/her being
prevented from attending to his/her duties.
2. The term of office of the Chairperson and Deputy Chairperson
shall expire when their respective membership of the Management
Board ceases. Subject to this provision, the duration of the terms of
office of the Chairperson or Deputy Chairperson shall be two years.
These terms of office shall be extendable once.
Article 23
Meetings
1. Meetings of the Management Board shall be convened by its
Chairperson.
2. The Executive Director of the Agency shall take part in the delib­
erations.
3. The Management Board shall hold at least two ordinary meetings
a year. In addition, it shall meet at the instance of the Chairperson or at
the request of at least one third of its members.
4. Ireland and the United Kingdom shall be invited to attend the
meetings of the Management Board.
5. The Management Board may invite any other person whose
opinion may be of interest to attend its meetings as an observer.
6. The members of the Management Board may, subject to the
provisions of its Rules of Procedure, be assisted by advisers or experts.
7. The secretariat for the Management Board shall be provided by
the Agency.
Article 24
Voting
1. Without prejudice to Article 20(2)(c) as well as 26(2) and (4), the
Management Board shall take its decisions by an absolute majority of
its members with a right to vote.
▼M2
2004R2007 — EN — 12.12.2011 — 002.001 — 34
2. Each member shall have one vote. The Executive Director of the
Agency shall not vote. In the absence of a member, his/her alternate
shall be entitled to exercise his/her right to vote.
3. The rules of procedure shall establish the more detailed voting
arrangements, in particular, the conditions for a member to act on
behalf of another member as well as any quorum requirements, where
appropriate.
Article 25
Functions and powers of the Executive Director
1. The Agency shall be managed by its Executive Director, who shall
be completely independent in the performance of his/her duties. Without
prejudice to the respective competencies of the Commission, the
Management Board and the Executive Bureau, the Executive Director
shall neither seek nor take instructions from any government or from
any other body.
▼M2
2. The European Parliament or the Council may invite the Executive
Director to report on the carrying out of his/her tasks, in particular on
the implementation and monitoring of the Fundamental Rights Strategy,
the general report of the Agency for the previous year, the work
programme for the following year and the Agency's multiannual plan
referred to in point (i) of Article 20(2).
▼B
3. The Executive Director shall have the following functions and
powers:
(a) to prepare and implement the decisions and programmes and
activities adopted by the Agency’s Management Board within the
limits specified by this Regulation, its implementing rules and any
applicable law;
(b) to take all necessary steps, including the adoption of internal administrative
instructions and the publication of notices, to ensure the
functioning of the Agency in accordance with the provisions of this
Regulation;
(c) to prepare each year a draft working programme and an activity
report and submit them to the Management Board;
(d) to exercise in respect of the staff the powers laid down in
Article 17(2);
(e) to draw up estimates of the revenues and expenditure of the Agency
pursuant to Article 29, and implement the budget pursuant to
Article 30;
(f) to delegate his/her powers to other members of the Agency’s staff
subject to rules to be adopted in accordance with the procedure
referred to in Article 20(2)(g);
▼M2
(g) to ensure the implementation of the operational plans referred to in
Articles 3a and 8e.
▼B
4. The Executive Director shall be accountable for his activities to
the Management Board.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 35
Article 26
Appointment of senior officials
1. The Commission shall propose candidates for the post of the
Executive Director based on a list following publication of the post in
the Official Journal of the European Union and other press or internet
sites as appropriate.
2. The Executive Director of the Agency shall be appointed by the
Management Board on the grounds of merit and documented administrative
and management skills, as well as his/her relevant experience in
the field of management of the external borders. The Management
Board shall take its decision by a two-thirds majority of all members
with a right to vote.
Power to dismiss the Executive Director shall lie with the Management
Board, according to the same procedure.
3. The Executive Director shall be assisted by a Deputy Executive
Director. If the Executive Director is absent or indisposed, the Deputy
Executive Director shall take his/her place.
4. The Deputy Executive Director shall be appointed by the
Management Board on the grounds of merit and documented administrative
and management skills, as well as his/her relevant experience in
the field of management of the external borders on the proposal of the
Executive Director. The Management Board shall take its decision by a
two-thirds majority of all members with a right to vote.
Power to dismiss the Deputy Executive Director shall be with the
Management Board, according to the same procedure.
5. The terms of the offices of the Executive Director and the Deputy
Executive Director shall be five years. They may be extended by the
Management Board once for another period of up to five years.
▼M2
Article 26a
Fundamental Rights Strategy
1. The Agency shall draw up and further develop and implement its
Fundamental Rights Strategy. The Agency shall put in place an effective
mechanism to monitor the respect for fundamental rights in all the
activities of the Agency.
2. A Consultative Forum shall be established by the Agency to assist
the Executive Director and the Management Board in fundamental
rights matters. The Agency shall invite the European Asylum Support
Office, the Fundamental Rights Agency, the United Nations High
Commissioner for Refugees and other relevant organisations to
participate in the Consultative Forum. On a proposal by the Executive
Director, the Management Board shall decide on the composition and
the working methods of the Consultative Forum and the modalities of
the transmission of information to the Consultative Forum.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 36
The Consultative Forum shall be consulted on the further development
and implementation of the Fundamental Rights Strategy, Code of
Conduct and common core curricula.
The Consultative Forum shall prepare an annual report of its activities.
That report shall be made publicly available.
3. A Fundamental Rights Officer shall be designated by the
Management Board and shall have the necessary qualifications and
experience in the field of fundamental rights. He/she shall be independent
in the performance of his/her duties as a Fundamental Rights
Officer and shall report directly to the Management Board and the
Consultative Forum. He/she shall report on a regular basis and as
such contribute to the mechanism for monitoring fundamental rights.
4. The Fundamental Rights Officer and the Consultative Forum shall
have access to all information concerning respect for fundamental rights,
in relation to all the activities of the Agency.
▼B
Article 27
Translation
1. The provisions laid down in Regulation No 1 of 15 April 1958
determining the languages to be used in the European Economic
Community (1) shall apply to the Agency.
2. Without prejudice to decisions taken on the basis of Article 290 of
the Treaty, the general report and programme of work referred to in
Article 20(2)(b) and (c), shall be produced in all official languages of
the Community.
3. The translation services required for the functioning of the Agency
shall be provided by the Translation Centre for the bodies of the
European Union.
Article 28
Transparency and communication
1. Six months after the entry into force of this Regulation, the
Agency shall be subject to Regulation (EC) No 1049/2001 when
handling applications for access to documents held by it.
2. The Agency may communicate on its own initiative in the fields
within its mission. It shall ensure in particular that, in addition to the
publication specified in Article 20(2)(b), the public and any interested
party are rapidly given objective, reliable and easily understandable
information with regard to its work.
3. The Management Board shall lay down the practical arrangements
for the application of paragraphs 1 and 2.
▼M2
2004R2007 — EN — 12.12.2011 — 002.001 — 37
(1) OJ 17, 6.10.1958, p. 385. Regulation as last amended by the 2003 Act of
Accession.
4. Any natural or legal person shall be entitled to address himself/
herself in writing to the Agency in any of the languages referred to in
Article 314 of the Treaty. He/she shall have the right to receive an
answer in the same language.
5. Decisions taken by the Agency pursuant to Article 8 of Regulation
(EC) No 1049/2001 may give rise to the lodging of a complaint to the
Ombudsman or form the subject of an action before the Court of Justice
of the European Communities, under the conditions laid down in
Articles 195 and 230 of the Treaty respectively.
CHAPTER IV
FINANCIAL REQUIREMENTS
Article 29
Budget
1. The revenue of the Agency shall consist, without prejudice to
other types of income, of:
— a subsidy from the Community entered in the general budget of the
European Union (Commission section),
— a contribution from the countries associated with the implementation,
application and development of the Schengen acquis,
— fees for services provided,
— any voluntary contribution from the Member States.
2. The expenditure of the Agency shall include the staff, administrative,
infrastructure and operational expenses.
3. The Executive Director shall draw up an estimate of the revenue
and expenditure of the Agency for the following financial year and shall
forward it to the Management Board together with an establishment
plan.
4. Revenue and expenditure shall be in balance.
5. The Management Board shall adopt the draft estimate, including
the provisional establishment plan accompanied by the preliminary work
programme, and forward them by 31 March to the Commission and to
the countries associated with the implementation, application and development
of the Schengen acquis.
6. The estimate shall be forwarded by the Commission to the
European Parliament and the Council (hereinafter referred to as the
budgetary authority) together with the preliminary draft budget of the
European Union.
7. On the basis of the estimate, the Commission shall enter in the
preliminary draft general budget of the European Union the estimates it
deems necessary for the establishment plan and the amount of the
subsidy to be charged to the general budget, which it shall place
before the budgetary authority in accordance with Article 272 of the
Treaty.
8. The budgetary authority shall authorise the appropriations for the
subsidy to the Agency.
The budgetary authority shall adopt the establishment plan for the
Agency.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 38
9. The Management Board adopts the Agency’s budget. It shall
become final following the final adoption of the general budget of the
European Union. Where appropriate, it shall be adjusted accordingly.
10. Any modification to the budget, including the establishment plan,
shall follow the same procedure.
11. The Management Board shall, as soon as possible, notify the
budgetary authority of its intention to implement any project, which
may have significant financial implications for the funding of its
budget, in particular any projects relating to property such as the
rental or purchase of buildings. It shall inform the Commission
thereof as well as the countries associated with the implementation,
application and development of the Schengen acquis.
Where a branch of the budgetary authority has notified its intention to
deliver an opinion, it shall forward its opinion to the Management
Board within a period of six weeks from the date of notification of
the project.
Article 30
Implementation and control of the budget
1. The Executive Director shall implement the Agency’s budget.
2. By 1 March at the latest following each financial year, the
Agency’s accounting officer shall communicate the provisional
accounts to the Commission’s accounting officer together with a
report on the budgetary and financial management for that financial
year. The Commission’s accounting officer shall consolidate the provisional
accounts of the institutions and decentralised bodies in
accordance with Article 128 of Council Regulation (EC, Euratom) No
1605/2002 of 25 June 2002 on the Financial Regulation applicable to
the general budget of the European Communities (1) (hereafter referred
to as the general Financial Regulation).
3. By 31 March at the latest following each financial year, the
Commission’s accounting officer shall forward the Agency’s provisional
accounts to the Court of Auditors, together with a report on the
budgetary and financial management for that financial year. The
report on the budgetary and financial management for that financial
year shall also be forwarded to the European Parliament and the
Council.
4. On receipt of the Court of Auditors’ observations on the Agency’s
provisional accounts, pursuant to Article 129 of the general Financial
Regulation, the Director shall draw up the Agency’s final accounts
under his/her own responsibility and forward them to the Management
Board for an opinion.
5. The Management Board shall deliver an opinion on the Agency’s
final accounts.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 39
(1) OJ L 248, 16.9.2002, p. 1.
6. By 1 July of the following year at the latest, the Executive
Director shall send the final accounts, together with the opinion of
the Management Board, to the Commission, the Court of Auditors,
the European Parliament and the Council as well as the countries
associated with the implementation, application and development of
the Schengen acquis.
7. The final accounts shall be published.
8. The Director shall send the Court of Auditors a reply to its observations
by 30 September at the latest. He shall also send this reply to
the Management Board.
9. Upon a recommendation from the Council, the European
Parliament shall, before 30 April of the discharge year + 2, give a
discharge to the Executive Director of the Agency in respect of the
implementation of the budget for the discharge year.
Article 31
Combating fraud
1. In order to combat fraud, corruption and other unlawful activities
the provisions of Regulation (EC) No 1073/1999 shall apply without
restriction.
2. The Agency shall accede to the Interinstitutional Agreement of
25 May 1999 and shall issue, without delay, the appropriate provisions
applicable to all the employees of the Agency.
3. The decisions concerning funding and the implementing
agreements and instruments resulting from them shall explicitly
stipulate that the Court of Auditors and OLAF may carry out, if
necessary, on-the-spot checks among the recipients of the Agency’s
funding and the agents responsible for allocating it.
Article 32
Financial provision
The financial rules applicable to the Agency shall be adopted by the
Management Board after consultation of the Commission. They may not
depart from Commission Regulation (EC, Euratom) No 2343/2002 (1)
on the framework Financial Regulation for the bodies referred to in
Article 185 of the general Financial Regulation, unless specifically
required for the Agency’s operation and with the Commission’s prior
consent.
CHAPTER V
FINAL PROVISIONS
Article 33
Evaluation
1. Within three years from the date of the Agency having taken up
its responsibilities, and every five years thereafter, the Management
Board shall commission an independent external evaluation on the
implementation of this Regulation.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 40
(1) OJ L 357, 31.12.2002, p. 72.
2. The evaluation shall examine how effectively the Agency fulfils
its mission. It shall also assess the impact of the Agency and its working
practices. The evaluation shall take into account the views of stakeholders,
at both European and national level.
▼M2
2a. The first evaluation following the entry into force of Regulation
(EU) No 1168/2011 of the European Parliament and of the Council of
25 October 2011 amending Council Regulation (EC) No 2007/2004
establishing a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the
European Union (1) shall also analyse the needs for further increased
coordination of the management of the external borders of the Member
States, including the feasibility of the creation of a European system of
border guards.
2b. The evaluation shall include a specific analysis on the way the
Charter of Fundamental Rights was complied with in the application of
this Regulation.
▼B
3. The Management Board shall receive the findings of the
evaluation and issue recommendations regarding changes to this Regulation,
the Agency and its working practices to the Commission, which
shall forward them, together with its own opinion as well as appropriate
proposals, to the Council. An action plan with a timetable shall be
included, if appropriate. Both the findings and the recommendations
of the evaluation shall be made public.
Article 34
Entry into force
This Regulation shall enter into force on the day following that of its
publication in the Official Journal of the European Union.
The Agency shall take up its responsibilities from 1 May 2005.
This Regulation shall be binding in its entirety and directly applicable in
the Member States in accordance with the Treaty establishing the
European Community.
▼B
2004R2007 — EN — 12.12.2011 — 002.001 — 41
(1) OJ L 304, 22.11.2011, p. 1.
Volume I - 33
B. Family Migration
1. Council Directive 2003/86/EC of 22 September 2003 on the right
to family reunification
COUNCIL DIRECTIVE 2003/86/EC
of 22 September 2003
on the right to family reunification
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 63(3)(a) thereof,
Having regard to the proposal from the Commission (1
),
Having regard to the opinion of the European Parliament (2
),
Having regard to the opinion of the European Economic and
Social Committee (3
),
Having regard to the opinion of the Committee of the
Regions (4
),
Whereas:
(1) With a view to the progressive establishment of an area
of freedom, security and justice, the Treaty establishing
the European Community provides both for the adoption
of measures aimed at ensuring the free movement
of persons, in conjunction with flanking measures
relating to external border controls, asylum and immigration,
and for the adoption of measures relating to
asylum, immigration and safeguarding the rights of third
country nationals.
(2) Measures concerning family reunification should be
adopted in conformity with the obligation to protect the
family and respect family life enshrined in many instruments
of international law. This Directive respects the
fundamental rights and observes the principles recognised
in particular in Article 8 of the European Convention
for the Protection of Human Rights and Fundamental
Freedoms and in the Charter of Fundamental
Rights of the European Union.
(3) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, acknowledged the need for
harmonisation of national legislation on the conditions
for admission and residence of third country nationals.
In this context, it has in particular stated that the
European Union should ensure fair treatment of third
country nationals residing lawfully on the territory of
the Member States and that a more vigorous integration
policy should aim at granting them rights and obligations
comparable to those of citizens of the European
Union. The European Council accordingly asked the
Council rapidly to adopt the legal instruments on the
basis of Commission proposals. The need for achieving
the objectives defined at Tampere have been reaffirmed
by the Laeken European Council on 14 and 15
December 2001.
(4) Family reunification is a necessary way of making family
life possible. It helps to create sociocultural stability facilitating
the integration of third country nationals in the
Member State, which also serves to promote economic
and social cohesion, a fundamental Community objective
stated in the Treaty.
(5) Member States should give effect to the provisions of
this Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic characteristics,
language, religion or beliefs, political or other
opinions, membership of a national minority, fortune,
birth, disabilities, age or sexual orientation.
(6) To protect the family and establish or preserve family
life, the material conditions for exercising the right to
family reunification should be determined on the basis
of common criteria.
(7) Member States should be able to apply this Directive
also when the family enters together.
(8) Special attention should be paid to the situation of refugees
on account of the reasons which obliged them to
flee their country and prevent them from leading a
normal family life there. More favourable conditions
should therefore be laid down for the exercise of their
right to family reunification.
(9) Family reunification should apply in any case to
members of the nuclear family, that is to say the spouse
and the minor children.
(10) It is for the Member States to decide whether they wish
to authorise family reunification for relatives in the
direct ascending line, adult unmarried children, unmarried
or registered partners as well as, in the event of a
polygamous marriage, minor children of a further
spouse and the sponsor. Where a Member State
authorises family reunification of these persons, this is
without prejudice of the possibility, for Member States
which do not recognise the existence of family ties in
the cases covered by this provision, of not granting to
the said persons the treatment of family members with
regard to the right to reside in another Member State, as
defined by the relevant EC legislation.
3.10.2003L 251/12 Official Journal of the European UnionEN
(1
) OJ C 116 E, 26.4.2000, p. 66, and OJ C 62 E, 27.2.2001, p. 99.
(2
) OJ C 135, 7.5.2001, p. 174.
(3
) OJ C 204, 18.7.2000, p. 40.
(4
) OJ C 73, 26.3.2003, p. 16.
(11) The right to family reunification should be exercised in
proper compliance with the values and principles recognised
by the Member States, in particular with respect to
the rights of women and of children; such compliance
justifies the possible taking of restrictive measures
against applications for family reunification of polygamous
households.
(12) The possibility of limiting the right to family reunification
of children over the age of 12, whose primary residence
is not with the sponsor, is intended to reflect the
children's capacity for integration at early ages and shall
ensure that they acquire the necessary education and
language skills in school.
(13) A set of rules governing the procedure for examination
of applications for family reunification and for entry and
residence of family members should be laid down. Those
procedures should be effective and manageable, taking
account of the normal workload of the Member States'
administrations, as well as transparent and fair, in order
to offer appropriate legal certainty to those concerned.
(14) Family reunification may be refused on duly justified
grounds. In particular, the person who wishes to be
granted family reunification should not constitute a
threat to public policy or public security. The notion of
public policy may cover a conviction for committing a
serious crime. In this context it has to be noted that the
notion of public policy and public security covers also
cases in which a third country national belongs to an
association which supports terrorism, supports such an
association or has extremist aspirations.
(15) The integration of family members should be promoted.
For that purpose, they should be granted a status independent
of that of the sponsor, in particular in cases of
breakup of marriages and partnerships, and access to
education, employment and vocational training on the
same terms as the person with whom they are reunited,
under the relevant conditions.
(16) Since the objectives of the proposed action, namely the
establishment of a right to family reunification for third
country nationals to be exercised in accordance with
common rules, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
and effects of the action, be better achieved by the
Community, 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
Directive does not go beyond what is necessary in order
to achieve those objectives.
(17) In accordance with Articles 1 and 2 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 and without
prejudice to Article 4 of the said Protocol these Member
States are not participating in the adoption of this Directive
and are not bound by or subject to its application.
(18) In accordance with Article 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 does not take part in
the adoption of this Directive, and is not bound by it or
subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
General provisions
Article 1
The purpose of this Directive is to determine the conditions for
the exercise of the right to family reunification by third country
nationals residing lawfully in the territory of the Member
States.
Article 2
For the purposes of this Directive:
(a) ‘third country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1) of
the Treaty;
(b) ‘refugee’ means any third country national or stateless
person enjoying refugee status within the meaning of the
Geneva Convention relating to the status of refugees of 28
July 1951, as amended by the Protocol signed in New York
on 31 January 1967;
(c) ‘sponsor’ means a third country national residing lawfully
in a Member State and applying or whose family members
apply for family reunification to be joined with him/her;
(d) ‘family reunification’ means the entry into and residence in
a Member State by family members of a third country
national residing lawfully in that Member State in order to
preserve the family unit, whether the family relationship
arose before or after the resident's entry;
(e) ‘residence permit’ means any authorisation issued by the
authorities of a Member State allowing a third country
national to stay legally in its territory, in accordance with
the provisions of Article 1(2)(a) of Council Regulation (EC)
No 1030/2002 of 13 June 2002 laying down a uniform
format for residence permits for third country nationals (1
);
3.10.2003 L 251/13Official Journal of the European UnionEN
(1
) OJ L 157, 15.6.2002, p. 1.
(f) ‘unaccompanied minor’ means third country nationals or
stateless persons below the age of eighteen, who arrive on
the territory of the Member States unaccompanied by an
adult responsible by law or custom, and for as long as they
are not effectively taken into the care of such a person, or
minors who are left unaccompanied after they entered the
territory of the Member States.
Article 3
1. This Directive shall apply where the sponsor is holding a
residence permit issued by a Member State for a period of
validity of one year or more who has reasonable prospects of
obtaining the right of permanent residence, if the members of
his or her family are third country nationals of whatever status.
2. This Directive shall not apply where the sponsor is:
(a) applying for recognition of refugee status whose application
has not yet given rise to a final decision;
(b) authorised to reside in a Member State on the basis of
temporary protection or applying for authorisation to
reside on that basis and awaiting a decision on his status;
(c) authorised to reside in a Member State on the basis of a
subsidiary form of protection in accordance with international
obligations, national legislation or the practice of the
Member States or applying for authorisation to reside on
that basis and awaiting a decision on his status.
3. This Directive shall not apply to members of the family
of a Union citizen.
4. This Directive is without prejudice to more favourable
provisions of:
(a) bilateral and multilateral agreements between the Community
or the Community and its Member States, on the one
hand, and third countries, on the other;
(b) the European Social Charter of 18 October 1961, the
amended European Social Charter of 3 May 1987 and the
European Convention on the legal status of migrant
workers of 24 November 1977.
5. This Directive shall not affect the possibility for the
Member States to adopt or maintain more favourable provi-
sions.
CHAPTER II
Family members
Article 4
1. The Member States shall authorise the entry and residence,
pursuant to this Directive and subject to compliance
with the conditions laid down in Chapter IV, as well as in
Article 16, of the following family members:
(a) the sponsor's spouse;
(b) the minor children of the sponsor and of his/her spouse,
including children adopted in accordance with a decision
taken by the competent authority in the Member State
concerned or a decision which is automatically enforceable
due to international obligations of that Member State or
must be recognised in accordance with international obliga-
tions;
(c) the minor children including adopted children of the
sponsor where the sponsor has custody and the children
are dependent on him or her. Member States may authorise
the reunification of children of whom custody is shared,
provided the other party sharing custody has given his or
her agreement;
(d) the minor children including adopted children of the
spouse where the spouse has custody and the children are
dependent on him or her. Member States may authorise the
reunification of children of whom custody is shared,
provided the other party sharing custody has given his or
her agreement.
The minor children referred to in this Article must be below
the age of majority set by the law of the Member State
concerned and must not be married.
By way of derogation, where a child is aged over 12 years and
arrives independently from the rest of his/her family, the
Member State may, before authorising entry and residence
under this Directive, verify whether he or she meets a condition
for integration provided for by its existing legislation on the
date of implementation of this Directive.
2. The Member States may, by law or regulation, authorise
the entry and residence, pursuant to this Directive and subject
to compliance with the conditions laid down in Chapter IV, of
the following family members:
(a) first-degree relatives in the direct ascending line of the
sponsor or his or her spouse, where they are dependent on
them and do not enjoy proper family support in the
country of origin;
(b) the adult unmarried children of the sponsor or his or her
spouse, where they are objectively unable to provide for
their own needs on account of their state of health.
3. The Member States may, by law or regulation, authorise
the entry and residence, pursuant to this Directive and subject
to compliance with the conditions laid down in Chapter IV, of
the unmarried partner, being a third country national, with
whom the sponsor is in a duly attested stable long-term relationship,
or of a third country national who is bound to the
sponsor by a registered partnership in accordance with Article
5(2), and of the unmarried minor children, including adopted
children, as well as the adult unmarried children who are objectively
unable to provide for their own needs on account of
their state of health, of such persons.
3.10.2003L 251/14 Official Journal of the European UnionEN
Member States may decide that registered partners are to be
treated equally as spouses with respect to family reunification.
4. In the event of a polygamous marriage, where the
sponsor already has a spouse living with him in the territory of
a Member State, the Member State concerned shall not
authorise the family reunification of a further spouse.
By way of derogation from paragraph 1(c), Member States may
limit the family reunification of minor children of a further
spouse and the sponsor.
5. In order to ensure better integration and to prevent
forced marriages Member States may require the sponsor and
his/her spouse to be of a minimum age, and at maximum 21
years, before the spouse is able to join him/her.
6. By way of derogation, Member States may request that
the applications concerning family reunification of minor children
have to be submitted before the age of 15, as provided for
by its existing legislation on the date of the implementation of
this Directive. If the application is submitted after the age of
15, the Member States which decide to apply this derogation
shall authorise the entry and residence of such children on
grounds other than family reunification.
CHAPTER III
Submission and examination of the application
Article 5
1. Member States shall determine whether, in order to exercise
the right to family reunification, an application for entry
and residence shall be submitted to the competent authorities
of the Member State concerned either by the sponsor or by the
family member or members.
2. The application shall be accompanied by documentary
evidence of the family relationship and of compliance with the
conditions laid down in Articles 4 and 6 and, where applicable,
Articles 7 and 8, as well as certified copies of family member(s)'
travel documents.
If appropriate, in order to obtain evidence that a family relationship
exists, Member States may carry out interviews with
the sponsor and his/her family members and conduct other
investigations that are found to be necessary.
When examining an application concerning the unmarried
partner of the sponsor, Member States shall consider, as
evidence of the family relationship, factors such as a common
child, previous cohabitation, registration of the partnership and
any other reliable means of proof.
3. The application shall be submitted and examined when
the family members are residing outside the territory of the
Member State in which the sponsor resides.
By way of derogation, a Member State may, in appropriate
circumstances, accept an application submitted when the family
members are already in its territory.
4. The competent authorities of the Member State shall give
the person, who has submitted the application, written notification
of the decision as soon as possible and in any event no
later than nine months from the date on which the application
was lodged.
In exceptional circumstances linked to the complexity of the
examination of the application, the time limit referred to in the
first subparagraph may be extended.
Reasons shall be given for the decision rejecting the application.
Any consequences of no decision being taken by the end
of the period provided for in the first subparagraph shall be
determined by the national legislation of the relevant Member
State.
5. When examining an application, the Member States shall
have due regard to the best interests of minor children.
CHAPTER IV
Requirements for the exercise of the right to family
reunification
Article 6
1. The Member States may reject an application for entry
and residence of family members on grounds of public policy,
public security or public health.
2. Member States may withdraw or refuse to renew a family
member's residence permit on grounds of public policy or
public security or public health.
When taking the relevant decision, the Member State shall
consider, besides Article 17, the severity or type of offence
against public policy or public security committed by the
family member, or the dangers that are emanating from such
person.
3. Renewal of the residence permit may not be withheld and
removal from the territory may not be ordered by the competent
authority of the Member State concerned on the sole
ground of illness or disability suffered after the issue of the residence
permit.
Article 7
1. When the application for family reunification is
submitted, the Member State concerned may require the person
who has submitted the application to provide evidence that the
sponsor has:
(a) accommodation regarded as normal for a comparable
family in the same region and which meets the general
health and safety standards in force in the Member State
concerned;
(b) sickness insurance in respect of all risks normally covered
for its own nationals in the Member State concerned for
himself/herself and the members of his/her family;
3.10.2003 L 251/15Official Journal of the European UnionEN
(c) stable and regular resources which are sufficient to maintain
himself/herself and the members of his/her family,
without recourse to the social assistance system of the
Member State concerned. Member States shall evaluate
these resources by reference to their nature and regularity
and may take into account the level of minimum national
wages and pensions as well as the number of family
members.
2. Member States may require third country nationals to
comply with integration measures, in accordance with national
law.
With regard to the refugees and/or family members of refugees
referred to in Article 12 the integration measures referred to in
the first subparagraph may only be applied once the persons
concerned have been granted family reunification.
Article 8
Member States may require the sponsor to have stayed lawfully
in their territory for a period not exceeding two years, before
having his/her family members join him/her.
By way of derogation, where the legislation of a Member State
relating to family reunification in force on the date of adoption
of this Directive takes into account its reception capacity, the
Member State may provide for a waiting period of no more
than three years between submission of the application for
family reunification and the issue of a residence permit to the
family members.
CHAPTER V
Family reunification of refugees
Article 9
1. This Chapter shall apply to family reunification of refugees
recognised by the Member States.
2. Member States may confine the application of this
Chapter to refugees whose family relationships predate their
entry.
3. This Chapter is without prejudice to any rules granting
refugee status to family members.
Article 10
1. Article 4 shall apply to the definition of family members
except that the third subparagraph of paragraph 1 thereof shall
not apply to the children of refugees.
2. The Member States may authorise family reunification of
other family members not referred to in Article 4, if they are
dependent on the refugee.
3. If the refugee is an unaccompanied minor, the Member
States:
(a) shall authorise the entry and residence for the purposes of
family reunification of his/her first-degree relatives in the
direct ascending line without applying the conditions laid
down in Article 4(2)(a);
(b) may authorise the entry and residence for the purposes of
family reunification of his/her legal guardian or any other
member of the family, where the refugee has no relatives in
the direct ascending line or such relatives cannot be traced.
Article 11
1. Article 5 shall apply to the submission and examination
of the application, subject to paragraph 2 of this Article.
2. Where a refugee cannot provide official documentary
evidence of the family relationship, the Member States shall
take into account other evidence, to be assessed in accordance
with national law, of the existence of such relationship. A decision
rejecting an application may not be based solely on the
fact that documentary evidence is lacking.
Article 12
1. By way of derogation from Article 7, the Member States
shall not require the refugee and/or family member(s) to
provide, in respect of applications concerning those family
members referred to in Article 4(1), the evidence that the
refugee fulfils the requirements set out in Article 7.
Without prejudice to international obligations, where family
reunification is possible in a third country with which the
sponsor and/or family member has special links, Member States
may require provision of the evidence referred to in the first
subparagraph.
Member States may require the refugee to meet the conditions
referred to in Article 7(1) if the application for family reunification
is not submitted within a period of three months after the
granting of the refugee status.
2. By way of derogation from Article 8, the Member States
shall not require the refugee to have resided in their territory
for a certain period of time, before having his/her family
members join him/her.
CHAPTER VI
Entry and residence of family members
Article 13
1. As soon as the application for family reunification has
been accepted, the Member State concerned shall authorise the
entry of the family member or members. In that regard, the
Member State concerned shall grant such persons every facility
for obtaining the requisite visas.
3.10.2003L 251/16 Official Journal of the European UnionEN
2. The Member State concerned shall grant the family
members a first residence permit of at least one year's duration.
This residence permit shall be renewable.
3. The duration of the residence permits granted to the
family member(s) shall in principle not go beyond the date of
expiry of the residence permit held by the sponsor.
Article 14
1. The sponsor's family members shall be entitled, in the
same way as the sponsor, to:
(a) access to education;
(b) access to employment and self-employed activity;
(c) access to vocational guidance, initial and further training
and retraining.
2. Member States may decide according to national law the
conditions under which family members shall exercise an
employed or self-employed activity. These conditions shall set a
time limit which shall in no case exceed 12 months, during
which Member States may examine the situation of their labour
market before authorising family members to exercise an
employed or self-employed activity.
3. Member States may restrict access to employment or selfemployed
activity by first-degree relatives in the direct
ascending line or adult unmarried children to whom Article
4(2) applies.
Article 15
1. Not later than after five years of residence, and provided
that the family member has not been granted a residence
permit for reasons other than family reunification, the spouse
or unmarried partner and a child who has reached majority
shall be entitled, upon application, if required, to an autonomous
residence permit, independent of that of the sponsor.
Member States may limit the granting of the residence permit
referred to in the first subparagraph to the spouse or unmarried
partner in cases of breakdown of the family relationship.
2. The Member States may issue an autonomous residence
permit to adult children and to relatives in the direct ascending
line to whom Article 4(2) applies.
3. In the event of widowhood, divorce, separation, or death
of first-degree relatives in the direct ascending or descending
line, an autonomous residence permit may be issued, upon
application, if required, to persons who have entered by virtue
of family reunification. Member States shall lay down provisions
ensuring the granting of an autonomous residence permit
in the event of particularly difficult circumstances.
4. The conditions relating to the granting and duration of
the autonomous residence permit are established by national
law.
CHAPTER VII
Penalties and redress
Article 16
1. Member States may reject an application for entry and
residence for the purpose of family reunification, or, if appropriate,
withdraw or refuse to renew a family member's residence
permit, in the following circumstances:
(a) where the conditions laid down by this Directive are not or
are no longer satisfied.
When renewing the residence permit, where the sponsor
has not sufficient resources without recourse to the social
assistance system of the Member State, as referred to in
Article 7(1)(c), the Member State shall take into account the
contributions of the family members to the household
income;
(b) where the sponsor and his/her family member(s) do not or
no longer live in a real marital or family relationship;
(c) where it is found that the sponsor or the unmarried partner
is married or is in a stable long-term relationship with
another person.
2. Member States may also reject an application for entry
and residence for the purpose of family reunification, or withdraw
or refuse to renew the family member's residence permits,
where it is shown that:
(a) false or misleading information, false or falsified documents
were used, fraud was otherwise committed or other
unlawful means were used;
(b) the marriage, partnership or adoption was contracted for
the sole purpose of enabling the person concerned to enter
or reside in a Member State.
When making an assessment with respect to this point,
Member States may have regard in particular to the fact
that the marriage, partnership or adoption was contracted
after the sponsor had been issued his/her residence permit.
3. The Member States may withdraw or refuse to renew the
residence permit of a family member where the sponsor's residence
comes to an end and the family member does not yet
enjoy an autonomous right of residence under Article 15.
4. Member States may conduct specific checks and inspections
where there is reason to suspect that there is fraud or a
marriage, partnership or adoption of convenience as defined by
paragraph 2. Specific checks may also be undertaken on the
occasion of the renewal of family members' residence permit.
3.10.2003 L 251/17Official Journal of the European UnionEN
Article 17
Member States shall take due account of the nature and solidity
of the person's family relationships and the duration of his residence
in the Member State and of the existence of family,
cultural and social ties with his/her country of origin where
they reject an application, withdraw or refuse to renew a residence
permit or decide to order the removal of the sponsor or
members of his family.
Article 18
The Member States shall ensure that the sponsor and/or the
members of his/her family have the right to mount a legal challenge
where an application for family reunification is rejected
or a residence permit is either not renewed or is withdrawn or
removal is ordered.
The procedure and the competence according to which the
right referred to in the first subparagraph is exercised shall be
established by the Member States concerned.
CHAPTER VIII
Final provisions
Article 19
Periodically, and for the first time not later than 3 October
2007, the Commission shall report to the European Parliament
and the Council on the application of this Directive in the
Member States and shall propose such amendments as may
appear necessary. These proposals for amendments shall be
made by way of priority in relation to Articles 3, 4, 7, 8
and 13.
Article 20
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive
by not later than 3 October 2005. They shall forthwith
inform the Commission thereof.
When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such a reference
on the occasion of their official publication. The methods
of making such reference shall be laid down by the Member
States.
Article 21
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.
Article 22
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Brussels, 22 September 2003.
For the Council
The President
F. FRATTINI
3.10.2003L 251/18 Official Journal of the European UnionEN
Volume I - 34
C. Student and Researcher Migration
1. Council Directive 2004/114/EC of 13 December 2004 on the
conditions of admission of third-country nationals for the purposes
of studies, pupil exchange, unremunerated training or
voluntary service
2. Council Directive 2005/71/EC of 12 October 2005 on a specific
procedure for admitting third-country nationals for the purposes
of scientific research
COUNCIL DIRECTIVE 2004/114/EC
of 13 december 2004
on the conditions of admission of third-country nationals for the purposes of studies, pupil
exchange, unremunerated training or voluntary service
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular points (3)(a) and (4) of the first
subparagraph of Article 63 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament (1),
Having regard to the Opinion of the European Economic and
Social Committee (2),
Having regard to the Opinion of the Committee of the
Regions (3),
Whereas:
(1) For the gradual establishment of an area of freedom,
security and justice, the Treaty provides for measures to
be adopted in the fields of asylum, immigration and the
protection of the rights of third-country nationals.
(2) The Treaty provides that the Council is to adopt
measures on immigration policy relating to conditions
of entry and residence, and standards on procedures
for the issue by Member States of long-term visas and
residence permits.
(3) At its special meeting at Tampere on 15 and 16 October
1999, the European Council acknowledged the need for
approximation of national legislation on the conditions
for admission and residence of third-country nationals
and asked the Council to rapidly adopt decisions on
the basis of proposals by the Commission.
(4) This Directive respects the fundamental rights and
observes the principles recognised by the Charter of
Fundamental Rights of the European Union.
(5) The Member States should give effect to the provisions of
this Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other
opinions, membership of a national minority, property,
birth, disability, age or sexual orientation.
(6) One of the objectives of Community action in the field
of education is to promote Europe as a whole as a world
centre of excellence for studies and vocational training.
Promoting the mobility of third-country nationals to the
Community for the purpose of studies is a key factor in
that strategy. The approximation of the Member States'
national legislation on conditions of entry and residence
is part of this.
(7) Migration for the purposes set out in this Directive,
which is by definition temporary and does not depend
on the labour-market situation in the host country,
constitutes a form of mutual enrichment for the
migrants concerned, their country of origin and the
host Member State and helps to promote better familiarity
among cultures.
(8) The term admission covers the entry and residence of
third-country nationals for the purposes set out in this
Directive.
(9) The new Community rules are based on definitions of
student, trainee, educational establishment and volunteer
already in use in Community law, in particular in the
various Community programmes to promote the
mobility of the relevant persons (Socrates, European
Voluntary Service etc.).
(10) The duration and other conditions of preparatory courses
for students covered by the present Directive should be
determined by Member States in accordance with their
national legislation.
(11) Third-country nationals who fall into the categories of
unremunerated trainees and volunteers and who are
considered, by virtue of their activities or the kind of
compensation or remuneration received, as workers
under national legislation are not covered by this
Directive. The admission of third-country nationals who
intend to carry out specialisation studies in the field of
medicine should be determined by the Member States.
(12) Evidence of acceptance of a student by an establishment
of higher education could include, among other possibilities,
a letter or certificate confirming his/her enrolment.
(13) Fellowships may be taken into account in assessing the
availability of sufficient resources.
ENL 375/12 Official Journal of the European Union 23.12.2004
(1) OJ C 68 E, 18.3.2004, p. 107.
(2) OJ C 133, 6.6.2003, p. 29.
(3) OJ C 244, 10.10.2003, p. 5.
(14) Admission for the purposes set out in this Directive may
be refused on duly justified grounds. In particular,
admission could be refused if a Member State
considers, based on an assessment of the facts, that the
third-country national concerned is a potential threat to
public policy or public security. The notion of public
policy may cover a conviction for committing a serious
crime. In this context it has to be noted that the notions
of public policy and public security also cover cases in
which a third-country national belongs or has belonged
to an association which supports terrorism, supports or
has supported such an association, or has or has had
extremist aspirations.
(15) In case of doubts concerning the grounds of the application
of admission, Member States should be able to
require all the evidence necessary to assess its
coherence, in particular on the basis of the applicant's
proposed studies, in order to fight against abuse and
misuse of the procedure set out in this Directive.
(16) The mobility of students who are third-country nationals
studying in several Member States must be facilitated, as
must the admission of third-country nationals participating
in Community programmes to promote mobility
within and towards the Community for the purposes set
out in this Directive.
(17) In order to allow initial entry into their territory, Member
States should be able to issue in a timely manner a
residence permit or, if they issue residence permits exclusively
on their territory, a visa.
(18) In order to allow students who are third-country
nationals to cover part of the cost of their studies, they
should be given access to the labour market under the
conditions set out in this Directive. The principle of
access for students to the labour market under the
conditions set out in this Directive should be a general
rule; however, in exceptional circumstances Member
States should be able to take into account the situation
of their national labour markets.
(19) The notion of prior authorisation includes the granting
of work permits to students who wish to exercise an
economic activity.
(20) This Directive does not affect national legislation in the
area of part-time work.
(21) Provision should be made for fast-track admission
procedures for study purposes or for pupil exchange
schemes operated by recognised organisations in the
Member States.
(22) Each Member State should ensure that the fullest possible
set of regularly updated information is made available to
the general public, notably on the Internet, as regards the
establishments defined in this Directive, courses of study
to which third-country nationals may be admitted and
the conditions and procedures for entry and residence in
its territory for those purposes.
(23) This Directive should not in any circumstances affect the
application of Council Regulation (EC) No 1030/2002 of
13 June 2002 laying down a uniform format for
residence permits for third-country nationals (1).
(24) Since the objective of this Directive, namely to determine
the conditions of admission of third-country nationals
for the purposes of study, pupil exchange, unremunerated
training or voluntary service, cannot be sufficiently
achieved by the Member States and can, by reason of its
scale or effects, 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 Directive does
not go beyond what is necessary to achieve that
objective.
(25) In accordance with Articles 1 and 2 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, and without
prejudice to Article 4 of the said Protocol, these
Member States are not taking part in the adoption of
this Directive and are not bound by it or subject to its
application.
(26) 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 is not taking part in
the adoption of this Directive and is not bound by it
or subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
The purpose of this Directive is to determine:
(a) the conditions for admission of third-country nationals to
the territory of the Member States for a period exceeding
three months for the purposes of studies, pupil exchange,
unremunerated training or voluntary service;
(b) the rules concerning the procedures for admitting thirdcountry
nationals to the territory of the Member States
for those purposes.
EN23.12.2004 Official Journal of the European Union L 375/13
(1) OJ L 157, 15.6.2002, p. 1.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘third-country national’ means any person who is not a
citizen of the European Union within the meaning of
Article 17(1) of the Treaty;
(b) ‘student’ means a third-country national accepted by an
establishment of higher education and admitted to the
territory of a Member State to pursue as his/her main
activity a full-time course of study leading to a higher
education qualification recognised by the Member State,
including diplomas, certificates or doctoral degrees in an
establishment of higher education, which may cover a
preparatory course prior to such education according to
its national legislation;
(c) ‘school pupil’ means a third-country national admitted to
the territory of a Member State to follow a recognised
programme of secondary education in the context of an
exchange scheme operated by an organisation recognised
for that purpose by the Member State in accordance with
its national legislation or administrative practice;
(d) ‘unremunerated trainee’ means a third-country national who
has been admitted to the territory of a Member State for a
training period without remuneration in accordance with its
national legislation;
(e) ‘establishment’ means a public or private establishment
recognised by the host Member State and/or whose
courses of study are recognised in accordance with its
national legislation or administrative practice for the
purposes set out in this Directive;
(f) ‘voluntary service scheme’ means a programme of activities
of practical solidarity, based on a State or a Community
scheme, pursuing objectives of general interest;
(g) ‘residence permit’ means any authorisation issued by the
authorities of a Member State allowing a third-country
national to stay legally in its territory, in accordance with
Article 1(2)(a) of Regulation (EC) No 1030/2002.
Article 3
Scope
1. This Directive shall apply to third-country nationals who
apply to be admitted to the territory of a Member State for the
purpose of studies.
Member States may also decide to apply this Directive to thirdcountry
nationals who apply to be admitted for the purposes of
pupil exchange, unremunerated training or voluntary service.
2. This Directive shall not apply to:
(a) third-country nationals residing in a Member State as
asylum-seekers, or under subsidiary forms of protection,
or under temporary protection schemes;
(b) third-country nationals whose expulsion has been
suspended for reasons of fact or of law;
(c) third-country nationals who are family members of Union
citizens who have exercised their right to free movement
within the Community;
(d) third-country nationals who enjoy long-term resident status
in a Member State in accordance with Council Directive
2003/109/EC of 25 November 2003 on the status of
third-country nationals who are long-term residents (1) and
exercise their right to reside in another Member State in
order to study or receive vocational training;
(e) third-country nationals considered under the national legislation
of the Member State concerned as workers or selfemployed
persons.
Article 4
More favourable provisions
1. This Directive shall be without prejudice to more
favourable provisions of:
(a) bilateral or multilateral agreements between the Community
or the Community and its Member States and one or more
third countries; or
(b) bilateral or multilateral agreements between one or more
Member States and one or more third countries.
2. This Directive shall be without prejudice to the right of
Member States to adopt or maintain provisions that are more
favourable to the persons to whom it applies.
CHAPTER II
CONDITIONS OF ADMISSION
Article 5
Principle
The admission of a third-country national under this Directive
shall be subject to the verification of documentary evidence
showing that he/she meets the conditions laid down in Article
6 and in whichever of Articles 7 to 11 applies to the relevant
category.
ENL 375/14 Official Journal of the European Union 23.12.2004
(1) OJ L 16, 23.1.2004, p. 44.
Article 6
General conditions
1. A third-country national who applies to be admitted for
the purposes set out in Articles 7 to 11 shall:
(a) present a valid travel document as determined by national
legislation. Member States may require the period of validity
of the travel document to cover at least the duration of the
planned stay;
(b) if he/she is a minor under the national legislation of the
host Member State, present a parental authorisation for the
planned stay;
(c) have sickness insurance in respect of all risks normally
covered for its own nationals in the Member State
concerned;
(d) not be regarded as a threat to public policy, public security
or public health;
(e) provide proof, if the Member State so requests, that he/she
has paid the fee for processing the application on the basis
of Article 20.
2. Member States shall facilitate the admission procedure for
the third-country nationals covered by Articles 7 to 11 who
participate in Community programmes enhancing mobility
towards or within the Community.
Article 7
Specific conditions for students
1. In addition to the general conditions stipulated in Article
6, a third-country national who applies to be admitted for the
purpose of study shall:
(a) have been accepted by an establishment of higher education
to follow a course of study;
(b) provide the evidence requested by a Member State that
during his/her stay he/she will have sufficient resources to
cover his/her subsistence, study and return travel costs.
Member States shall make public the minimum monthly
resources required for the purpose of this provision,
without prejudice to individual examination of each case;
(c) provide evidence, if the Member State so requires, of
sufficient knowledge of the language of the course to be
followed by him/her;
(d) provide evidence, if the Member State so requires, that
he/she has paid the fees charged by the establishment.
2. Students who automatically qualify for sickness insurance
in respect of all risks normally covered for the nationals of the
Member State concerned as a result of enrolment at an establishment
shall be presumed to meet the condition of Article
6(1)(c).
Article 8
Mobility of students
1. Without prejudice to Articles 12(2), 16 and 18(2), a thirdcountry
national who has already been admitted as a student
and applies to follow in another Member State part of the
studies already commenced, or to complement them with a
related course of study in another Member State, shall be
admitted by the latter Member State within a period that does
not hamper the pursuit of the relevant studies, whilst leaving
the competent authorities sufficient time to process the application,
if he/she:
(a) meets the conditions laid down by Articles 6 and 7 in
relation to that Member State; and
(b) has sent, with his/her application for admission, full documentary
evidence of his/her academic record and evidence
that the course he/she wishes to follow genuinely
complements the one he/she has completed; and
(c) participates in a Community or bilateral exchange
programme or has been admitted as a student in a
Member State for no less than two years.
2. The requirements referred to in paragraph 1(c), shall not
apply in the case where the student, in the framework of his/her
programme of studies, is obliged to attend a part of his/her
courses in an establishment of another Member State.
3. The competent authorities of the first Member State shall,
at the request of the competent authorities of the second
Member State, provide the appropriate information in relation
to the stay of the student in the territory of the first Member
State.
Article 9
Specific conditions for school pupils
1. Subject to Article 3, a third-country national who applies
to be admitted in a pupil exchange scheme shall, in addition to
the general conditions stipulated in Article 6:
(a) not be below the minimum age nor above the maximum
age set by the Member State concerned;
(b) provide evidence of acceptance by a secondary education
establishment;
EN23.12.2004 Official Journal of the European Union L 375/15
(c) provides evidence of participation in a recognised pupil
exchange scheme programme operated by an organisation
recognised for that purpose by the Member State concerned
in accordance with its national legislation or administrative
practice;
(d) provides evidence that the pupil exchange organisation
accepts responsibility for him/her throughout his/her
period of presence in the territory of the Member State
concerned, in particular as regards subsistence, study,
healthcare and return travel costs;
(e) be accommodated throughout his/her stay by a family
meeting the conditions set by the Member State
concerned and selected in accordance with the rules of
the pupil exchange scheme in which he/she is participating.
2. Member States may confine the admission of school
pupils participating in an exchange scheme to nationals of
third countries which offer the same possibility for their own
nationals.
Article 10
Specific conditions for unremunerated trainees
Subject to Article 3, a third-country national who applies to be
admitted as an unremunerated trainee shall, in addition to the
general conditions stipulated in Article 6:
(a) have signed a training agreement, approved if need be by
the relevant authority in the Member State concerned in
accordance with its national legislation or administrative
practice, for an unremunerated placement with a publicor
private-sector enterprise or vocational training establishment
recognised by the Member State in accordance
with its national legislation or administrative practice;
(b) provide the evidence requested by a Member State that
during his/her stay he/she will have sufficient resources to
cover his/her subsistence, training and return travel costs.
The Member States shall make public the minimum
monthly resources required for the purpose of this
provision, without prejudice to individual examination of
each case;
(c) receive, if the Member State so requires, basic language
training so as to acquire the knowledge needed for the
purposes of the placement.
Article 11
Specific conditions for volunteers
Subject to Article 3, a third-country national who applies to be
admitted to a voluntary service scheme shall, in addition to the
general conditions stipulated in Article 6:
(a) not be below the minimum age nor above the maximum
age set by the Member State concerned;
(b) produce an agreement with the organisation responsible in
the Member State concerned for the voluntary service
scheme in which he/she is participating, giving a description
of tasks, the conditions in which he/she is supervised in the
performance of those tasks, his/her working hours, the
resources available to cover his travel, subsistence, accommodation
costs and pocket money throughout his/her stay
and, if appropriate, the training he will receive to help
him/her perform his/her service;
(c) provide evidence that the organisation responsible for the
voluntary service scheme in which he/she is participating
has subscribed a third-party insurance policy and accepts
full responsibility for him/her throughout his/her stay, in
particular as regards his/her subsistence, healthcare and
return travel costs;
(d) and, if the host Member State specifically requires it, receive
a basic introduction to the language, history and political
and social structures of that Member State.
CHAPTER III
RESIDENCE PERMITS
Article 12
Residence permit issued to students
1. A residence permit shall be issued to the student for a
period of at least one year and renewable if the holder
continues to meet the conditions of Articles 6 and 7. Where
the duration of the course of study is less than one year, the
permit shall be valid for the duration of the course.
2. Without prejudice to Article 16, renewal of a residence
permit may be refused or the permit may be withdrawn if the
holder:
(a) does not respect the limits imposed on access to economic
activities under Article 17;
(b) does not make acceptable progress in his/her studies in
accordance with national legislation or administrative
practice.
Article 13
Residence permit issued to school pupils
A residence permit issued to school pupils shall be issued for a
period of no more than one year.
Article 14
Residence permit issued to unremunerated trainees
The period of validity of a residence permit issued to unremunerated
trainees shall correspond to the duration of the
placement or shall be for a maximum of one year. In exceptional
cases, it may be renewed, once only and exclusively for
such time as is needed to acquire a vocational qualification
recognised by a Member State in accordance with its national
legislation or administrative practice, provided the holder still
meets the conditions laid down in Articles 6 and 10.
ENL 375/16 Official Journal of the European Union 23.12.2004
Article 15
Residence permit issued to volunteers
A residence permit issued to volunteers shall be issued for a
period of no more than one year. In exceptional cases, if the
duration of the relevant programme is longer than one year, the
duration of the validity of the residence permit may correspond
to the period concerned.
Article 16
Withdrawal or non-renewal of residence permits
1. Member States may withdraw or refuse to renew a
residence permit issued on the basis of this Directive when it
has been fraudulently acquired or wherever it appears that the
holder did not meet or no longer meets the conditions for entry
and residence laid down in Article 6 and in whichever of
Articles 7 to 11 applies to the relevant category.
2. Member States may withdraw or refuse to renew a
residence permit on grounds of public policy, public security
or public health.
CHAPTER IV
TREATMENT OF THE THIRD-COUNTRY NATIONALS
CONCERNED
Article 17
Economic activities by students
1. Outside their study time and subject to the rules and
conditions applicable to the relevant activity in the host
Member State, students shall be entitled to be employed and
may be entitled to exercise self-employed economic activity. The
situation of the labour market in the host Member State may be
taken into account.
Where necessary, Member States shall grant students and/or
employers prior authorisation in accordance with national legis-
lation.
2. Each Member State shall determine the maximum number
of hours per week or days or months per year allowed for such
an activity, which shall not be less than 10 hours per week, or
the equivalent in days or months per year.
3. Access to economic activities for the first year of residence
may be restricted by the host Member State.
4. Member States may require students to report, in advance
or otherwise, to an authority designated by the Member State
concerned, that they are engaging in an economic activity. Their
employers may also be subject to a reporting obligation, in
advance or otherwise.
CHAPTER V
PROCEDURE AND TRANSPARENCY
Article 18
Procedural guarantees and transparency
1. A decision on an application to obtain or renew a
residence permit shall be adopted, and the applicant shall be
notified of it, within a period that does not hamper the pursuit
of the relevant studies, whilst leaving the competent authorities
sufficient time to process the application.
2. If the information supplied in support of the application is
inadequate, processing of the application may be suspended and
the competent authorities shall inform the applicant of any
further information they need.
3. Any decision rejecting an application for a residence
permit shall be notified to the third-country national
concerned in accordance with the notification procedures
provided for under the relevant national legislation. The notification
shall specify the possible redress procedures available and
the time limit for taking action.
4. Where an application is rejected or a residence permit
issued in accordance with this Directive is withdrawn, the
person concerned shall have the right to mount a legal
challenge before the authorities of the Member State concerned.
Article 19
Fast-track procedure for issuing residence permits or visas
to students and school pupils
An agreement on the establishment of a fast-track admission
procedure allowing residence permits or visas to be issued in
the name of the third-country national concerned may be
concluded between the authority of a Member State with
responsibility for the entry and residence of students or
school pupils who are third-country nationals and an establishment
of higher education or an organisation operating
pupil exchange schemes which has been recognised for this
purpose by the Member State concerned in accordance with
its national legislation or administrative practice.
Article 20
Fees
Member States may require applicants to pay fees for the
processing of applications in accordance with this Directive.
EN23.12.2004 Official Journal of the European Union L 375/17
CHAPTER VI
FINAL PROVISIONS
Article 21
Reporting
Periodically, and for the first time by 12 January 2010, the
Commission shall report to the European Parliament and the
Council on the application of this Directive in the Member
States and propose amendments if appropriate.
Article 22
Transposition
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 12 January 2007. 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.
Article 23
Transitional provision
By way of derogation from the provisions set out in Chapter III
and for a period of up to two years after the date set out in
Article 22, Member States are not obliged to issue permits in
accordance with this Directive in the form of a residence permit.
Article 24
Time limits
Without prejudice to the second subparagraph of Article 4(2) of
Directive 2003/109/EC, Member States shall not be obliged to
take into account the time during which the student, exchange
pupil, unremunerated trainee or volunteer has resided as such in
their territory for the purpose of granting further rights under
national law to the third-country nationals concerned.
Article 25
Entry into force
This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union.
Article 26
Addressees
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Brussels, 13 December 2004.
For the Council
The President
B. R. BOT
ENL 375/18 Official Journal of the European Union 23.12.2004
COUNCIL DIRECTIVE 2005/71/EC
of 12 October 2005
on a specific procedure for admitting third-country nationals for the purposes of scientific
research
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 63(3)(a) and (4) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Having regard to the opinion of the European Economic and
Social Committee (2),
Having regard to the opinion of the Committee of the
Regions (3)
Whereas:
(1) With a view to consolidating and giving structure to
European research policy, the Commission considered it
necessary in January 2000 to establish the European
Research Area as the lynchpin of the Community’s future
action in this field.
(2) Endorsing the European Research Area, the Lisbon
European Council in March 2000 set the Community
the objective of becoming the most competitive and
dynamic knowledge-based economy in the world by
2010.
(3) The globalisation of the economy calls for greater
mobility of researchers, something which was recognised
by the sixth framework programme of the European
Community (4), when it opened up its programmes
further to researchers from outside the European Union.
(4) The number of researchers which the Community will
need by 2010 to meet the target set by the Barcelona
European Council in March 2002 of 3 % of GDP invested
in research is estimated at 700 000. This target is to be
met through a series of interlocking measures, such as
making scientific careers more attractive to young
people, promoting women’s involvement in scientific
research, extending the opportunities for training and
mobility in research, improving career prospects for
researchers in the Community and opening up the
Community to third-country nationals who might be
admitted for the purposes of research.
(5) This Directive is intended to contribute to achieving these
goals by fostering the admission and mobility for
research purposes of third-country nationals for stays
of more than three months, in order to make the
Community more attractive to researchers from around
the world and to boost its position as an international
centre for research.
(6) Implementation of this Directive should not encourage a
brain drain from emerging or developing countries.
Back-up measures to support researchers’ reintegration
into their countries of origin as well as the movement of
researchers should be taken in partnership with the
countries of origin with a view to establishing a
comprehensive migration policy.
(7) For the achievement of the objectives of the Lisbon
process it is also important to foster the mobility within
the Union of researchers who are EU citizens, and in
particular researchers from the Member States which
acceded in 2004, for the purpose of carrying out
scientific research.
(8) Given the openness imposed by changes in the world
economy and the likely requirements to meet the 3 % of
GDP target for investment in research, third-country
researchers potentially eligible under this Directive
should be defined broadly in accordance with their
qualifications and the research project which they intend
to carry out.
(9) As the effort to be made to achieve the said 3 % target
largely concerns the private sector, which must therefore
recruit more researchers in the years to come, the
research organisations potentially eligible under this
Directive belong to both the public and private sectors.
3.11.2005 EN Official Journal of the European Union L 289/15
(1
) Opinion of 12 April 2005 (not yet published in the Official
Journal).
(2
) OJ C 120, 20.5.2005, p. 60.
(3) OJ C 71, 22.3.2005, p. 6.
(4
) Decision No 1513/2002/EC of the European Parliament and of
the Council of 27 June 2002 concerning the sixth framework
programme of the European Community for research,
technological development and demonstration activities, contributing
to the creation of the European Research Area and to
innovation (2002 to 2006) (OJ L 232, 29.8.2002, p. 1).
Decision amended by Decision No 786/2004/EC (OJ L 138,
30.4.2004, p. 7).
(10) Each Member State should ensure that the most
comprehensive information possible, regularly kept up
to date, is made publicly available, via the Internet in
particular, on the research organisations, approved under
this Directive, with which researchers could conclude a
hosting agreement, and on the conditions and procedures
for entry and residence on its territory for the
purposes of carrying out research, as adopted under this
Directive.
(11) It is appropriate to facilitate the admission of researchers
by establishing an admission procedure which does not
depend on their legal relationship with the host research
organisation and by no longer requiring a work permit in
addition to a residence permit. Member States could
apply similar rules for third-country nationals requesting
admission for the purposes of teaching in a higher
education establishment in accordance with national
legislation or administrative practice, in the context of a
research project.
(12) At the same time, the traditional avenues of admission
(such as employment and traineeship) should be
maintained, especially for doctoral students carrying
out research as students, who should be excluded from
the scope of this Directive and are covered by Council
Directive 2004/114/EC of 13 December 2004 on the
conditions of admission of third-country nationals for
the purposes of studies, pupil exchange, unremunerated
training or voluntary service (1).
(13) The specific procedure for researchers is based on
collaboration between the research organisations and
the immigration authorities in the Member States: it gives
the former a key role in the admission procedure with a
view to facilitating and speeding up the entry and
residence of third-country researchers in the Community
while preserving Member States’ prerogatives with
respect to immigration policing.
(14) Research organisations approved in advance by the
Member States should be able to sign a hosting
agreement with a third-country national for the purposes
of carrying out a research project. Member States will
issue a residence permit on the basis of the hosting
agreement if the conditions for entry and residence are
met.
(15) In order to make the Community more attractive to
third-country researchers, they should be granted, during
their stay, equal social and economic rights with
nationals of the host Member State in a number of
areas and the possibility to teach in higher education
establishments.
(16) This Directive adds a very important improvement in the
field of social security as the non-discrimination
principle also applies directly to persons coming to a
Member State directly from a third country. Nevertheless,
this Directive should not confer more rights than those
already provided in existing Community legislation in the
field of social security for third-country nationals who
have cross-border elements between Member States. This
Directive furthermore should not grant rights in relation
to situations which lie outside the scope of Community
legislation like for example family members residing in a
third country.
(17) It is important to foster the mobility of third-country
nationals admitted for the purposes of carrying out
scientific research as a means of developing and
consolidating contacts and networks between partners
and establishing the role of the European Research Area
at world level. Researchers should be able to exercise
mobility under the conditions established by this
Directive. The conditions for exercising mobility under
this Directive should not affect the rules currently
governing recognition of the validity of the travel
documents.
(18) Special attention should be paid to the facilitation and
support of the preservation of the unity of family
members of the researchers, according to the Council
Recommendation of 12 October 2005 to facilitate the
admission of third-country nationals to carry out
scientific research in the European Community (2).
(19) In order to preserve family unity and to enable mobility,
family members should be able to join the researcher in
another Member State under the conditions determined
by the national law of such Member State, including its
obligations arising from bilateral or multilateral agree-
ments.
(20) Holders of residence permits should be in principle
allowed to submit an application for admission while
remaining on the territory of the Member State
concerned.
(21) Member States should have the right to charge applicants
for the processing of applications for residence permits.
L 289/16 EN Official Journal of the European Union 3.11.2005
(1) OJ L 375, 23.12.2004, p. 12. (2) See page 26 of this Official Journal.
(22) This Directive should not affect in any circumstances the
application of Council Regulation (EC) No 1030/2002 of
13 June 2002 laying down a uniform format for
residence permits for third-country nationals (1).
(23) The objectives of this Directive, namely the introduction
of a special admission procedure and the adoption of
conditions of entry and residence applicable to thirdcountry
nationals for stays of more than three months in
the Member States for the purposes of conducting a
research project under a hosting agreement with a
research organisation, cannot be sufficiently achieved by
the Member States, especially as regards ensuring
mobility between Member States, and can therefore be
better achieved by the Community. The Community is
therefore entitled to take measures in accordance with
the subsidiarity principle laid down in Article 5 of the
Treaty. In accordance with the principle of proportionality
set out in that article, this Directive does not go
beyond what is necessary to achieve those objectives.
(24) Member States should give effect to the provisions of this
Directive without discrimination on the basis of sex, race,
colour, ethnic or social origin, genetic characteristics,
language, religion or beliefs, political or other opinions,
membership of a national minority, fortune, birth,
disabilities, age or sexual orientation.
(25) This Directive respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
(26) In accordance with paragraph 34 of the Interinstitutional
agreement on better law-making, Member States will be
encouraged to draw up, for themselves and in the interest
of the Community, their own tables, which will, as far as
possible, illustrate the correlation between this Directive
and the transposition measures, and to make them
public.
(27) 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, Ireland has given notice
by letter of 1 July 2004 of its wish to participate in the
adoption and application of this Directive.
(28) In accordance with Articles 1 and 2 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, and without
prejudice to Article 4 of the said Protocol, the United
Kingdom is not participating in the adoption of this
Directive and is not bound by it or subject to its
application.
(29) 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 does not take part in
the adoption of this Directive, and is not bound by it or
subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Purpose
This Directive lays down the conditions for the admission of
third-country researchers to the Member States for more than
three months for the purposes of carrying out a research
project under hosting agreements with research organisations.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘third-country national’ means any person who is not a
Union citizen within the meaning of Article 17(1) of the
Treaty;
(b) ‘research’ means creative work undertaken on a systematic
basis in order to increase the stock of knowledge,
including knowledge of man, culture and society, and the
use of this stock of knowledge to devise new applica-
tions;
(c) ‘research organisation’ means any public or private
organisations which conducts research and which has
been approved for the purposes of this Directive by a
Member State in accordance with the latter's legislation
or administrative practice;
(d) ‘researcher’ means a third-country national holding an
appropriate higher education qualification, which gives
access to doctoral programmes, who is selected by a
research organisation for carrying out a research project
for which the above qualification is normally required;
3.11.2005 EN Official Journal of the European Union L 289/17
(1) OJ L 157, 15.6.2002, p. 1.
(e) ‘residence permit’ means any authorisation bearing the
term ‘researcher’ issued by the authorities of a Member
State allowing a third-country national to stay legally on
its territory, in accordance with Article 1(2)(a) of
Regulation (EC) No 1030/2002.
Article 3
Scope
1. This Directive shall apply to third-country nationals who
apply to be admitted to the territory of a Member State for the
purpose of carrying out a research project.
2. This Directive shall not apply to:
(a) third-country nationals staying in a Member State as
applicants for international protection or under temporary
protection schemes;
(b) third-country nationals applying to reside in a Member
State as students within the meaning of Directive 2004/
114/EC in order to carry out research leading to a
doctoral degree;
(c) third-country nationals whose expulsion has been
suspended for reasons of fact or law;
(d) researchers seconded by a research organisation to
another research organisation in another Member State.
Article 4
More favourable provisions
1. This Directive shall be without prejudice to more
favourable provisions of:
(a) bilateral or multilateral agreements concluded between
the Community or between the Community and its
Member States on the one hand and one or more third
countries on the other;
(b) bilateral or multilateral agreements concluded between
one or more Member States and one or more third
countries.
2. This Directive shall not affect the right of Member States
to adopt or retain more favourable provisions for persons to
whom it applies.
CHAPTER II
RESEARCH ORGANISATIONS
Article 5
Approval
1. Any research organisation wishing to host a researcher
under the admission procedure laid down in this Directive
shall first be approved for that purpose by the Member State
concerned.
2. The approval of the research organisations shall be in
accordance with procedures set out in the national law or
administrative practice of the Member States. Applications for
approval by both public and private organisations shall be
made in accordance with those procedures and be based on
their statutory tasks or corporate purposes as appropriate and
on proof that they conduct research.
The approval granted to a research organisation shall be for a
minimum period of five years. In exceptional cases, Member
States may grant approval for a shorter period.
3. Member States may require, in accordance with national
legislation, a written undertaking of the research organisation
that in cases where a researcher remains illegally in the
territory of the Member State concerned, the said organisation
is responsible for reimbursing the costs related to his/her stay
and return incurred by public funds. The financial responsibility
of the research organisation shall end at the latest six
months after the termination of the hosting agreement.
4. Member States may provide that, within two months of
the date of expiry of the hosting agreement concerned, the
approved organisation shall provide the competent authorities
designated for the purpose by the Member States with
confirmation that the work has been carried out for each of
the research projects in respect of which a hosting agreement
has been signed pursuant to Article 6.
5. The competent authorities in each Member State shall
publish and update regularly lists of the research organisations
approved for the purposes of this Directive.
L 289/18 EN Official Journal of the European Union 3.11.2005
6. A Member State may, among other measures, refuse to
renew or decide to withdraw the approval of a research
organisation which no longer meets the conditions laid down
in paragraphs 2, 3 and 4 or in cases where the approval has
been fraudulently acquired or where a research organisation
has signed a hosting agreement with a third-country national
fraudulently or negligently. Where approval has been refused
or withdrawn, the organisation concerned may be banned
from reapplying for approval up to five years from the date of
publication of the decision on withdrawal or non-renewal.
7. Member States may determine in their national legislation
the consequences of the withdrawal of the approval or refusal
to renew the approval for the existing hosting agreements,
concluded in accordance with Article 6, as well as the
consequences for the residence permits of the researchers
concerned.
Article 6
Hosting agreement
1. A research organisation wishing to host a researcher shall
sign a hosting agreement with the latter whereby the
researcher undertakes to complete the research project and
the organisation undertakes to host the researcher for that
purpose without prejudice to Article 7.
2. Research organisations may sign hosting agreements only
if the following conditions are met:
(a) the research project has been accepted by the relevant
authorities in the organisation, after examination of:
(i) the purpose and duration of the research, and the
availability of the necessary financial resources for it
to be carried out;
(ii) the researcher’s qualifications in the light of the
research objectives, as evidenced by a certified copy
of his/her qualification in accordance with Article 2
(d);
(b) during his/her stay the researcher has sufficient monthly
resources to meet his/her expenses and return travel costs
in accordance with the minimum amount published for
the purpose by the Member State, without having
recourse to the Member State’s social assistance system;
(c) during his/her stay the researcher has sickness insurance
for all the risks normally covered for nationals of the
Member State concerned;
(d) the hosting agreement specifies the legal relationship and
working conditions of the researchers.
3. Once the hosting agreement is signed, the research
organisation may be required, in accordance with national
legislation, to provide the researcher with an individual
statement that for costs within the meaning of Article 5(3)
financial responsibility has been assumed.
4. The hosting agreement shall automatically lapse when the
researcher is not admitted or when the legal relationship
between the researcher and the research organisation is
terminated.
5. Research organisations shall promptly inform the authority
designated for the purpose by the Member States of any
occurrence likely to prevent implementation of the hosting
agreement.
CHAPTER III
ADMISSION OF RESEARCHERS
Article 7
Conditions for admission
1. A third-country national who applies to be admitted for
the purposes set out in this Directive shall:
(a) present a valid travel document, as determined by
national law. Member States may require the period of
the validity of the travel document to cover at least the
duration of the residence permit;
(b) present a hosting agreement signed with a research
organisation in accordance with Article 6(2);
(c) where appropriate, present a statement of financial
responsibility issued by the research organisation in
accordance with Article 6(3); and
(d) not be considered to pose a threat to public policy, public
security or public health.
Member States shall check that all the conditions referred to in
points (a), (b), (c) and (d) are met.
2. Member States may also check the terms upon which the
hosting agreement has been based and concluded.
3. Once the checks referred to in paragraphs 1 and 2 have
been positively concluded, researchers shall be admitted on
the territory of the Member States to carry out the hosting
agreement.
3.11.2005 EN Official Journal of the European Union L 289/19
Article 8
Duration of residence permit
Member States shall issue a residence permit for a period of at
least one year and shall renew it if the conditions laid down in
Articles 6 and 7 are still met. If the research project is
scheduled to last less than one year, the residence permit shall
be issued for the duration of the project.
Article 9
Family members
1. When a Member State decides to grant a residence permit
to the family members of a researcher, the duration of validity
of their residence permit shall be the same as that of the
residence permit issued to the researcher insofar as the period
of validity of their travel documents allows it. In duly justified
cases, the duration of the residence permit of the family
member of the researcher may be shortened.
2. The issue of the residence permit to the family members
of the researcher admitted to a Member State shall not be
made dependent on the requirement of a minimum period of
residence of the researcher.
Article 10
Withdrawal or non-renewal of the residence permit
1. Member States may withdraw or refuse to renew a
residence permit issued on the basis of this Directive when it
has been fraudulently acquired or wherever it appears that the
holder did not meet or no longer meets the conditions for
entry and residence provided by Articles 6 and 7 or is residing
for purposes other that that for which he was authorised to
reside.
2. Member States may withdraw or refuse to renew a
residence permit for reasons of public policy, public security
or public health.
CHAPTER IV
RESEARCHERS’ RIGHTS
Article 11
Teaching
1. Researchers admitted under this Directive may teach in
accordance with national legislation.
2. Member States may set a maximum number of hours or
of days for the activity of teaching.
Article 12
Equal treatment
Holders of a residence permit shall be entitled to equal
treatment with nationals as regards:
(a) recognition of diplomas, certificates and other professional
qualifications in accordance with the relevant
national procedures;
(b) working conditions, including pay and dismissal;
(c) branches of social security as defined in Council
Regulation (EEC) No 1408/71 of 14 June 1971 on the
application of social security schemes to employed
persons, to self-employed persons and to members of
their families moving within the Community (1). The
special provisions in the Annex to Council Regulation
(EC) No 859/2003 of 14 May 2003 extending the
provisions of Regulation (EEC) No 1408/71 and
Regulation (EEC) No 574/72 to nationals of third
countries who are not already covered by these
provisions solely on the ground of their nationality (2)
shall apply accordingly;
(d) tax benefits;
(e) access to goods and services and the supply of goods and
services made available to the public.
Article 13
Mobility between Member States
1. A third-country national who has been admitted as a
researcher under this Directive shall be allowed to carry out
part of his/her research in another Member State under the
conditions as set out in this Article.
L 289/20 EN Official Journal of the European Union 3.11.2005
(1) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by
Regulation (EC) No 647/2005 of the European Parliament and
of the Council (OJ L 117, 4.5.2005, p. 1).
(2) OJ L 124, 20.5.2003, p. 1.
2. If the researcher stays in another Member State for a
period of up to three months, the research may be carried out
on the basis of the hosting agreement concluded in the first
Member State, provided that he has sufficient resources in the
other Member State and is not considered as a threat to public
policy, public security or public health in the second Member
State.
3. If the researcher stays in another Member State for more
than three months, Member States may require a new hosting
agreement to carry out the research in that Member State. At
all events, the conditions set out in Articles 6 and 7 shall be
met in relation to the Member State concerned.
4. Where the relevant legislation provides for the requirement
of a visa or a residence permit, for exercising mobility,
such a visa or permit shall be granted in a timely manner
within a period that does not hamper the pursuit of the
research, whilst leaving the competent authorities sufficient
time to process the applications.
5. Member States shall not require the researcher to leave
their territory in order to submit applications for the visas or
residence permits.
CHAPTER V
PROCEDURE AND TRANSPARENCY
Article 14
Applications for admission
1. Member States shall determine whether applications for
residence permits are to be made by the researcher or by the
research organisation concerned.
2. The application shall be considered and examined when
the third-country national concerned is residing outside the
territory of the Member States to which he/she wishes to be
admitted.
3. Member States may accept, in accordance with their
national legislation, an application submitted when the thirdcountry
national concerned is already in their territory.
4. The Member State concerned shall grant the thirdcountry
national who has submitted an application and who
meets the conditions of Articles 6 and 7 every facility to
obtain the requisite visas.
Article 15
Procedural safeguards
1. The competent authorities of the Member States shall
adopt a decision on the complete application as soon as
possible and, where appropriate, provide for accelerated
procedures.
2. If the information supplied in support of the application
is inadequate, the consideration of the application may be
suspended and the competent authorities shall inform the
applicant of any further information they need.
3. Any decision rejecting an application for a residence
permit shall be notified to the third-country national
concerned in accordance with the notification procedures
under the relevant national legislation. The notification shall
specify the possible redress procedures available and the time
limit for taking action.
4. Where an application is rejected, or a residence permit,
issued in accordance with this Directive, is withdrawn, the
person concerned shall have the right to mount a legal
challenge before the authorities of the Member State
concerned.
CHAPTER VI
FINAL PROVISIONS
Article 16
Reports
Periodically, and for the first time no later than three years
after the entry into force of this Directive, the Commission
shall report to the European Parliament and the Council on
the application of this Directive in the Member States and shall
propose any amendments that are necessary.
Article 17
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 12 October 2007.
When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.
3.11.2005 EN Official Journal of the European Union L 289/21
2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt
in the field covered by this Directive.
Article 18
Transitional provision
By way of derogation from the provisions set out in
Chapter III, Member States shall not be obliged to issue
permits in accordance with this Directive in the form of a
residence permit for a period of up to two years, after the date
referred to in Article 17(1).
Article 19
Common Travel Area
Nothing in this Directive shall affect the right of Ireland to
maintain the Common Travel Area arrangements referred to
in the Protocol, annexed by the Treaty of Amsterdam to the
Treaty on European Union and the Treaty establishing the
European Community, on the application of certain aspects of
Article 14 of the Treaty establishing the European Community
to the United Kingdom and Ireland.
Article 20
Entry into force
This Directive shall enter into force on the twentieth day
following its publication in the Official Journal of the European
Union.
Article 21
Addressees
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Luxembourg, 12 October 2005.
For the Council
The President
C. CLARKE
L 289/22 EN Official Journal of the European Union 3.11.2005
Volume I - 35
D. Labour Migration
1. Council Directive 2009/50/EC of 25 May 2009 on the conditions
of entry and residence of third-country nationals for the purposes
of highly qualified employment
2. Directive 2011/98/EU of the European Parliament and of the
Council of 13 December 2011 on a single application procedure
for a single permit for third-country nationals to reside and work
in the territory of a Member State and on a common set of
rights for third-country workers legally residing in a Member
State
DIRECTIVES
COUNCIL DIRECTIVE 2009/50/EC
of 25 May 2009
on the conditions of entry and residence of third-country nationals for the purposes of highly
qualified employment
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular points (3)(a) and (4) of the first
subparagraph of Article 63 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
After consulting the European Economic and Social
Committee (2),
After consulting the Committee of the Regions (3),
Whereas:
(1) For the gradual establishment of an area of freedom,
security and justice, the Treaty provides for measures to
be adopted in the fields of asylum, immigration and
protection of the rights of third-country nationals.
(2) The Treaty provides that the Council is to adopt
measures on immigration policy relating to conditions
of entry and residence, standards on procedures for the
issue by Member States of long-term visas and residence
permits, and measures defining the rights and conditions
under which nationals of third-countries who are legally
resident in a Member State may reside in other Member
States.
(3) The Lisbon European Council in March 2000 set the
Community the objective of becoming the most competitive
and dynamic knowledge-based economy in the
world, capable of sustainable economic growth with
more and better jobs and greater social cohesion by
2010. Measures to attract and retain highly qualified
third-country workers as part of an approach based on
the needs of Member States should be seen in the
broader context established by the Lisbon Strategy and
by the Commission Communication of 11 December
2007 on the integrated guidelines for growth and jobs.
(4) The Hague Programme, adopted by the European Council
on 4 and 5 November 2004, recognised that legal
migration will play an important role in enhancing the
knowledge-based economy in Europe, advancing
economic development, and thus contributing to the implementation
of the Lisbon Strategy. The European
Council invited the Commission to present a policy
plan on legal migration, including admission procedures,
capable of responding promptly to fluctuating demands
for migrant labour in the labour market.
(5) The European Council of 14 and 15 December 2006
agreed on a series of steps for 2007, among which to
develop well-managed legal immigration policies, fully
respecting national competences, to assist Member
States in meeting existing and future labour needs.
(6) To achieve the objectives of the Lisbon Strategy it is also
important to foster the mobility within the Union of
highly qualified workers who are Union citizens, in
particular those from the Member States which acceded
in 2004 and 2007. In implementing this Directive,
Member States are bound to respect the principle of
Community preference as expressed, in particular, in
the relevant provisions of the Acts of Accession of
2003 and 2005.
(7) This Directive is intended to contribute to achieving these
goals and addressing labour shortages by fostering the
admission and mobility — for the purposes of highly
qualified employment — of third-country nationals for
stays of more than three months, in order to make the
Community more attractive to such workers from
around the world and sustain its competitiveness and
economic growth. To reach these goals, it is necessary
to facilitate the admission of highly qualified workers and
their families by establishing a fast-track admission
procedure and by granting them equal social and
EN18.6.2009 Official Journal of the European Union L 155/17
(1) Opinion of 20 November 2008 (not yet published in the Official
Journal).
(2) Opinion of 9 July 2008 (not yet published in the Official Journal).
(3) Opinion of 18 June 2008 (not yet published in the Official Journal).
economic rights as nationals of the host Member State in
a number of areas. It is also necessary to take into
account the priorities, labour market needs and
reception capacities of the Member States. This
Directive should be without prejudice to the competence
of the Member States to maintain or to introduce new
national residence permits for any purpose of
employment. The third-country nationals concerned
should have the possibility to apply for an EU Blue
Card or for a national residence permit. Moreover, this
Directive should not affect the possibility for an EU Blue
Card holder to enjoy additional rights and benefits which
may be provided by national law, and which are
compatible with this Directive.
(8) This Directive should be without prejudice to the right of
the Member States to determine the volumes of
admission of third-country nationals entering their
territory for the purposes of highly qualified
employment. This should include also third-country
nationals who seek to remain on the territory of a
Member State in order to exercise a paid economic
activity and who are legally resident in that Member
State under other schemes, such as students having just
completed their studies or researchers having been
admitted pursuant to Council Directive 2004/114/EC of
13 December 2004 on the conditions of admission of
third-country nationals for the purposes of studies, pupil
exchange, unremunerated training or voluntary service (1)
and Council Directive 2005/71/EC of 12 October 2005
on a specific procedure for admitting third-country
nationals for the purposes of scientific research (2) respectively,
and who do not enjoy consolidated access
to the labour market of the Member State under
Community or national law. Moreover, regarding
volumes of admission, Member States retain the possibility
not to grant residence permits for employment in
general or for certain professions, economic sectors or
regions.
(9) For the purpose of this Directive, in order to evaluate if
the third-country national concerned possesses higher
education qualifications, reference may be made to
ISCED (International Standard Classification of
Education) 1997 levels 5a and 6.
(10) This Directive should provide for a flexible demanddriven
entry system, based on objective criteria, such as
a minimum salary threshold comparable with the salary
levels in the Member States, and on professional qualifications.
The definition of a common minimum
denominator for the salary threshold is necessary to
ensure a minimum level of harmonisation in the
admission conditions throughout the Community. The
salary threshold determines a minimum level while
Member States may define a higher salary threshold.
Member States should fix their threshold in accordance
with the situation and organisation of their respective
labour markets and their general immigration policies.
Derogation from the main scheme in terms of the
salary threshold may be laid down for specific
professions where it is considered by the Member State
concerned that there is a particular lack of available
workforce and where such professions are part of the
major group 1 and 2 of the ISCO (International
Standard Classification of Occupation) classification.
(11) This Directive aims only at defining the conditions of
entry and residence of third-country nationals for the
purposes of highly qualified employment within the EU
Blue Card system, including the eligibility criteria related
to a salary threshold. The sole purpose of this salary
threshold is to help to determine, taking into account a
statistical observation published by the Commission
(Eurostat) or by the Member States concerned, the
scope of the EU Blue Card established by each Member
State on the basis of common rules. It does not aim to
determine salaries and therefore does not derogate from
the rules or practices at Member State level or from
collective agreements, and cannot be used to constitute
any harmonisation in this field. This Directive fully
respects the competences of Member States, particularly
on employment, labour and social matters.
(12) Once a Member State has decided to admit a thirdcountry
national fulfilling the relevant criteria, the
third-country national who applied for an EU Blue
Card should receive the specific residence permit
provided for by this Directive, which should grant
progressive access to the labour market and residence
and mobility rights to him and his family. The deadline
for examining the application for an EU Blue Card
should not include the time required for the recognition
of professional qualifications or the time required for
issuing a visa, if required. This Directive is without
prejudice to national procedures on the recognition of
diplomas. The designation of the competent authorities
under this Directive is without prejudice to the role and
responsibilities of other national authorities and, where
applicable, the social partners, with regard to the examination
of, and the decision on, the application.
(13) The format of the EU Blue Card should be in accordance
with Council Regulation (EC) No 1030/2002 of 13 June
2002 laying down a uniform format for residence
permits for third-country nationals (3), thus enabling the
Member States to refer to the information, in particular,
under which conditions the person is permitted to work.
ENL 155/18 Official Journal of the European Union 18.6.2009
(1) OJ L 375, 23.12.2004, p. 12.
(2) OJ L 289, 3.11.2005, p. 15. (3) OJ L 157, 15.6.2002, p. 1.
(14) Third-country nationals who are in possession of a valid
travel document and an EU Blue Card issued by a
Member State applying the Schengen acquis in full,
should be allowed to enter into and move freely within
the territory of another Member State applying the
Schengen acquis in full, for a period of up to three
months, in accordance with Regulation (EC) No
562/2006 of the European Parliament and of the
Council of 15 March 2006 establishing a Community
Code on the rules governing the movement of persons
across borders (Schengen Borders Code) (1) and
Article 21 of the Convention implementing the
Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic
Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at
their common borders.
(15) The occupational and geographical mobility of thirdcountry
highly qualified workers should be recognised
as a primary mechanism for improving labour market
efficiency, preventing skill shortages and offsetting
regional imbalances. In order to respect the principle of
Community preference and to avoid possible abuses of
the system, the occupational mobility of a third-country
highly qualified worker should be limited for the first
two years of legal employment in a Member State.
(16) This Directive fully respects equal treatment between
nationals of the Member States and EU Blue Card
holders in relation to pay, when they are in comparable
situations.
(17) Equal treatment of EU Blue Card holders does not cover
measures in the field of vocational training which are
covered under social assistance schemes.
(18) EU Blue Card holders should enjoy equal treatment as
regards social security. Branches of social security are
defined in Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons
and to members of their families moving within the
Community (2). Council Regulation (EC) No 859/2003
of 14 May 2003 extending the provisions of Regulation
(EEC) No 1408/71 and Regulation (EEC) No 574/72 to
nationals of third-countries who are not already covered
by those provisions solely on the ground of their
nationality (3) extends the provisions of Regulation
(EEC) No 1408/71 to third-country nationals who are
legally residing in the Community and who are in a
cross-border situation. The provisions on equal
treatment as regards social security in this Directive
also apply directly to persons entering into the territory
of a Member State directly from a third-country,
provided that the person concerned is legally residing
as holder of a valid EU Blue Card, including during the
period of temporary unemployment, and he fulfils the
conditions, set out under national law, for being
eligible for the social security benefits concerned.
Nevertheless, this Directive should not confer to the EU
Blue Card holder more rights than those already provided
in existing Community law in the field of social security
for third-country nationals who have cross-border
elements between Member States. This Directive,
furthermore, should not grant rights in relation to
situations which lie outside the scope of Community
law such as, for example, the situation of family
members residing in a third country.
(19) Professional qualifications acquired by a third-country
national in another Member State should be recognised
in the same way as those of Union citizens. Qualifications
acquired in a third country should be taken
into account in conformity with Directive 2005/36/EC
of the European Parliament and of the Council of
7 September 2005 on the recognition of professional
qualifications (4).
(20) The geographical mobility within the Community should
be controlled and demand-driven during the first period
of legal stay of the highly qualified third-country worker.
Derogations from Council Directive 2003/109/EC of
25 November 2003 concerning the status of thirdcountry
nationals who are long-term residents (5)
should be provided for in order not to penalise geographically
mobile highly qualified third-country workers
who have not yet acquired the EC long-term resident
status referred to in that Directive, and in order to
encourage geographical and circular migration.
(21) The mobility of highly qualified third-country workers
between the Community and their countries of origin
should be fostered and sustained. Derogations from
Directive 2003/109/EC should be provided for in order
to extend the period of absence from the territory of the
Community without interrupting the period of legal and
continuous residence necessary to be eligible for EC longterm
resident status. Longer periods of absence than
those provided for in Directive 2003/109/EC should
also be allowed after highly qualified third-country
workers have acquired EC long-term resident status to
encourage their circular migration.
EN18.6.2009 Official Journal of the European Union L 155/19
(1) OJ L 105, 13.4.2006, p. 1.
(2) OJ L 149, 5.7.1971, p. 2.
(3) OJ L 124, 20.5.2003, p. 1.
(4) OJ L 255, 30.9.2005, p. 22.
(5) OJ L 16, 23.1.2004, p. 44.
(22) In implementing this Directive, Member States should
refrain from pursuing active recruitment in developing
countries in sectors suffering from a lack of personnel.
Ethical recruitment policies and principles applicable to
public and private sector employers should be developed
in key sectors, for example the health sector, as
underlined in the Council and Member States’
conclusions of 14 May 2007 on the European
Programme for Action to tackle the critical shortage of
health workers in developing countries (2007 to 2013)
and the education sector, as appropriate. These should be
strengthened by the development and application of
mechanisms, guidelines and other tools to facilitate, as
appropriate, circular and temporary migration, as well as
other measures that would minimise negative and
maximise positive impacts of highly skilled immigration
on developing countries in order to turn ‘brain drain’
into ‘brain gain’.
(23) Favourable conditions for family reunification and for
access to work for spouses should be a fundamental
element of this Directive which aims to attract highly
qualified third-country workers. Specific derogations to
Council Directive 2003/86/EC of 22 September 2003
on the right to family reunification (1) should be
provided for in order to reach this aim. The derogation
included in Article 15(3) of this Directive does not
preclude Member States from maintaining or introducing
integration conditions and measures, including language
learning, for the members of the family of an EU Blue
Card holder.
(24) Specific reporting provisions should be provided for to
monitor the implementation of this Directive, with a
view to identifying and possibly counteracting its
possible impacts in terms of ‘brain drain’ in developing
countries and in order to avoid ‘brain waste’. The relevant
data should be transmitted annually by the Member
States to the Commission in accordance with Regulation
(EC) No 862/2007 of the European Parliament and of
the Council of 11 July 2007 on Community statistics on
migration and international protection (2).
(25) Since the objectives of this Directive, namely the introduction
of a special admission procedure and the
adoption of conditions of entry and residence for more
than three months applicable to third-country nationals
in the Member States for the purposes of highly qualified
employment and their family members, cannot be sufficiently
achieved by the Member States, especially as
regards ensuring their mobility between Member States,
and can therefore 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 Directive does
not go beyond what is necessary in order to achieve
those objectives.
(26) This Directive respects the fundamental rights and
observes the principles recognised in particular in
Article 6 of the Treaty on European Union and
reflected in the Charter of Fundamental Rights of the
European Union.
(27) In accordance with paragraph 34 of the Interinstitutional
agreement of the European Parliament, the Council and
the Commission on better law-making (3), Member States
are encouraged to draw up, for themselves and in the
interest of the Community, their own tables, which will,
as far as possible, illustrate the correlation between the
Directive and the transposition measures, and make them
public.
(28) In accordance with Articles 1 and 2 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 and without
prejudice to Article 4 of the said Protocol these
Member States are not taking part in the adoption of
this Directive and are not bound by or subject to its
application.
(29) 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 not bound by it or
subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
The purpose of this Directive is to determine:
(a) the conditions of entry and residence for more than three
months in the territory of the Member States of thirdcountry
nationals for the purpose of highly qualified
employment as EU Blue Card holders, and of their family
members;
(b) the conditions for entry and residence of third-country
nationals and of their family members under point (a) in
Member States other than the first Member State.
ENL 155/20 Official Journal of the European Union 18.6.2009
(1) OJ L 251, 3.10.2003, p. 12.
(2) OJ L 199, 31.7.2007, p. 23. (3) OJ C 321, 31.12.2003, p. 1.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1)
of the Treaty;
(b) ‘highly qualified employment’ means the employment of a
person who:
— in the Member State concerned, is protected as an
employee under national employment law and/or in
accordance with national practice, irrespective of the
legal relationship, for the purpose of exercising
genuine and effective work for, or under the direction
of, someone else,
— is paid, and,
— has the required adequate and specific competence, as
proven by higher professional qualifications,
(c) ‘EU Blue Card’ means the authorisation bearing the term ‘EU
Blue Card’ entitling its holder to reside and work in the
territory of a Member State under the terms of this
Directive;
(d) ‘first Member State’ means the Member State which first
grants a third-country national an ‘EU Blue Card’;
(e) ‘second Member State’ means any Member State other than
the first Member State;
(f) ‘family members’ means third-country nationals as defined
in Article 4(1) of Directive 2003/86/EC;
(g) ‘higher professional qualifications’ means qualifications
attested by evidence of higher education qualifications or,
by way of derogation, when provided for by national law,
attested by at least five years of professional experience of a
level comparable to higher education qualifications and
which is relevant in the profession or sector specified in
the work contract or binding job offer;
(h) ‘higher education qualification’ means any diploma, certificate
or other evidence of formal qualifications issued by a
competent authority attesting the successful completion of a
post-secondary higher education programme, namely a set
of courses provided by an educational establishment
recognised as a higher education institution by the State
in which it is situated. For the purposes of this Directive,
a higher education qualification shall be taken into account,
on condition that the studies needed to acquire it lasted at
least three years;
(i) ‘professional experience’ means the actual and lawful pursuit
of the profession concerned;
(j) ‘regulated profession’ means a regulated profession as
defined in Article 3(1)(a) of Directive 2005/36/EC.
Article 3
Scope
1. This Directive shall apply to third-country nationals who
apply to be admitted to the territory of a Member State for the
purpose of highly qualified employment under the terms of this
Directive.
2. This Directive shall not apply to third-country nationals:
(a) who are authorised to reside in a Member State on the basis
of temporary protection or have applied for authorisation to
reside on that basis and are awaiting a decision on their
status;
(b) who are beneficiaries of international protection under
Council Directive 2004/83/EC of 29 April 2004 on
minimum standards for the qualification and status of
third-country nationals or stateless persons as refugees or
as persons who otherwise need international protection and
the content of the protection granted (1) or have applied for
international protection under that Directive and whose
application has not yet given rise to a final decision;
(c) who are beneficiaries of protection in accordance with
national law, international obligations or practice of the
Member State or have applied for protection in accordance
with national law, international obligations or practice of
the Member State and whose application has not given rise
to a final decision;
(d) who apply to reside in a Member State as researchers,
within the meaning of Directive 2005/71/EC, in order to
carry out a research project;
(e) who are family members of Union citizens who have
exercised, or are exercising, their right to free movement
within the Community in conformity with Directive
2004/38/EC of the European Parliament and of the
Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside freely
within the territory of the Member States (2);
(f) who enjoy EC long-term resident status in a Member State
in accordance with Directive 2003/109/EC and exercise
their right to reside in another Member State in order to
carry out an economic activity in an employed or selfemployed
capacity;
EN18.6.2009 Official Journal of the European Union L 155/21
(1) OJ L 304, 30.9.2004, p. 12.
(2) OJ L 158, 30.4.2004, p. 77, as corrected by OJ L 229, 29.6.2004,
p. 35.
(g) who enter a Member State under commitments contained in
an international agreement facilitating the entry and
temporary stay of certain categories of trade and
investment-related natural persons;
(h) who have been admitted to the territory of a Member State
as seasonal workers;
(i) whose expulsion has been suspended for reasons of fact or
law;
(j) who are covered by Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services (1) as long as they are posted on
the territory of the Member State concerned.
In addition, this Directive shall not apply to third-country
nationals and their family members, whatever their nationality,
who, under agreements between the Community and its
Member States and those third countries enjoy rights of free
movement equivalent to those of Union citizens.
3. This Directive shall be without prejudice to any agreement
between the Community and/or its Member States and one or
more third countries, that lists the professions which should not
fall under this Directive in order to assure ethical recruitment, in
sectors suffering from a lack of personnel, by protecting human
resources in the developing countries which are signatories to
these agreements.
4. This Directive shall be without prejudice to the right of
the Member States to issue residence permits other than an EU
Blue Card for any purpose of employment. Such residence
permits shall not confer the right of residence in the other
Member States as provided for in this Directive.
Article 4
More favourable provisions
1. This Directive shall be without prejudice to more
favourable provisions of:
(a) Community law, including bilateral or multilateral
agreements concluded between the Community or
between the Community and its Member States and one
or more third countries;
(b) bilateral or multilateral agreements concluded between one
or more Member States and one or more third countries.
2. This Directive shall not affect the right of Member States
to adopt or retain more favourable provisions for persons to
whom it applies in respect of the following provisions of this
Directive:
(a) Article 5(3) in application of Article 18;
(b) Articles 11, 12(1), second sentence, 12(2), 13, 14, 15 and
16(4).
CHAPTER II
CONDITIONS OF ADMISSION
Article 5
Criteria for admission
1. Without prejudice to Article 10(1), a third-country
national who applies for an EU Blue Card under the terms of
this Directive shall:
(a) present a valid work contract or, as provided for in national
law, a binding job offer for highly qualified employment, of
at least one year in the Member State concerned;
(b) present a document attesting fulfilment of the conditions set
out under national law for the exercise by Union citizens of
the regulated profession specified in the work contract or
binding job offer as provided for in national law;
(c) for unregulated professions, present the documents attesting
the relevant higher professional qualifications in the occupation
or sector specified in the work contract or in the
binding job offer as provided for in national law;
(d) present a valid travel document, as determined by national
law, an application for a visa or a visa, if required, and
evidence of a valid residence permit or of a national longterm
visa, if appropriate. Member States may require the
period of validity of the travel document to cover at least
the initial duration of the residence permit;
(e) present evidence of having or, if provided for by national
law, having applied for a sickness insurance for all the risks
normally covered for nationals of the Member State
concerned for periods where no such insurance coverage
and corresponding entitlement to benefits are provided in
connection with, or resulting from, the work contract;
(f) not be considered to pose a threat to public policy, public
security or public health.
ENL 155/22 Official Journal of the European Union 18.6.2009
(1) OJ L 18, 21.1.1997, p. 1.
2. Member States may require the applicant to provide his
address in the territory of the Member State concerned.
3. In addition to the conditions laid down in paragraph 1,
the gross annual salary resulting from the monthly or annual
salary specified in the work contract or binding job offer shall
not be inferior to a relevant salary threshold defined and
published for that purpose by the Member States, which shall
be at least 1,5 times the average gross annual salary in the
Member State concerned.
4. When implementing paragraph 3, Member States may
require that all conditions in the applicable laws, collective
agreements or practices in the relevant occupational branches
for highly qualified employment are met.
5. By way of derogation to paragraph 3, and for
employment in professions which are in particular need of
third-country national workers and which belong to the
major groups 1 and 2 of ISCO, the salary threshold may be
at least 1,2 times the average gross annual salary in the Member
State concerned. In this case, the Member State concerned shall
communicate each year to the Commission the list of the
professions for which a derogation has been decided.
6. This Article shall be without prejudice to the applicable
collective agreements or practices in the relevant occupational
branches for highly qualified employment.
Article 6
Volumes of admission
This Directive shall not affect the right of a Member State to
determine the volume of admission of third-country nationals
entering its territory for the purposes of highly qualified
employment.
CHAPTER III
EU BLUE CARD, PROCEDURE AND TRANSPARENCY
Article 7
EU Blue Card
1. A third-country national who has applied and fulfils the
requirements set out in Article 5 and for whom the competent
authorities have taken a positive decision in accordance with
Article 8 shall be issued with an EU Blue Card.
The Member State concerned shall grant the third-country
national every facility to obtain the requisite visas.
2. Member States shall set a standard period of validity of the
EU Blue Card, which shall be comprised between one and four
years. If the work contract covers a period less than this period,
the EU Blue Card shall be issued or renewed for the duration of
the work contract plus three months.
3. The EU Blue Card shall be issued by the competent
authorities of the Member State using the uniform format as
laid down in Regulation (EC) No 1030/2002. In accordance
with point (a) 7,5-9 of the Annex to that Regulation, Member
States shall indicate on the EU Blue Card the conditions for
access to the labour market as set out in Article 12(1) of this
Directive. Under the heading ‘type of permit’ in the residence
permit, Member States shall enter ‘EU Blue Card’.
4. During the period of its validity, the EU Blue Card shall
entitle its holder to:
(a) enter, re-enter and stay in the territory of the Member State
issuing the EU Blue Card;
(b) the rights recognised in this Directive.
Article 8
Grounds for refusal
1. Member States shall reject an application for a EU Blue
Card whenever the applicant does not meet the conditions set
out in Article 5 or whenever the documents presented have
been fraudulently acquired, or falsified or tampered with.
2. Before taking the decision on an application for an EU
Blue Card, and when considering renewals or authorisations
pursuant to Article 12(1) and (2) during the first two years of
legal employment as an EU Blue Card holder, Member States
may examine the situation of their labour market and apply
their national procedures regarding the requirements for filling
a vacancy.
Member States may verify whether the concerned vacancy could
not be filled by national or Community workforce, by thirdcountry
nationals lawfully resident in that Member State and
already forming part of its labour market by virtue of
Community or national law, or by EC long-term residents
wishing to move to that Member State for highly qualified
employment in accordance with Chapter III of Directive
2003/109/EC.
3. An application for an EU Blue Card may also be
considered as inadmissible on the grounds of Article 6.
4. Member States may reject an application for an EU Blue
Card in order to ensure ethical recruitment in sectors suffering
from a lack of qualified workers in the countries of origin.
5. Member States may reject an application for an EU Blue
Card if the employer has been sanctioned in conformity with
national law for undeclared work and/or illegal employment.
EN18.6.2009 Official Journal of the European Union L 155/23
Article 9
Withdrawal or non-renewal of the EU Blue Card
1. Member States shall withdraw or refuse to renew an EU
Blue Card issued on the basis of this Directive in the following
cases:
(a) when it has been fraudulently acquired, or has been falsified
or tampered with;
(b) wherever it appears that the holder did not meet or no
longer meets the conditions for entry and residence laid
down in this Directive or is residing for purposes other
than that for which the holder was authorised to reside;
(c) when the holder has not respected the limitations set out in
Articles 12(1) and (2) and 13.
2. The lack of communication pursuant to Article 12(2)
second subparagraph and 13(4) shall not be considered to be
a sufficient reason for withdrawing or not renewing the EU Blue
Card if the holder can prove that the communication did not
reach the competent authorities for a reason independent of the
holder's will.
3. Member States may withdraw or refuse to renew an EU
Blue Card issued on the basis of this Directive in the following
cases:
(a) for reasons of public policy, public security or public health;
(b) wherever the EU Blue Card holder does not have sufficient
resources to maintain himself and, where applicable, the
members of his family, without having recourse to the
social assistance system of the Member State concerned.
Member States shall evaluate these resources by reference
to their nature and regularity and may take into account the
level of minimum national wages and pensions as well as
the number of family members of the person concerned.
Such evaluation shall not take place during the period of
unemployment referred to in Article 13;
(c) if the person concerned has not communicated his address;
(d) when the EU Blue Card holder applies for social assistance,
provided that the appropriate written information has been
provided to him in advance by the Member State concerned.
Article 10
Applications for admission
1. Member States shall determine whether applications for an
EU Blue Card are to be made by the third-country national
and/or by his employer.
2. The application shall be considered and examined either
when the third-country national concerned is residing outside
the territory of the Member State to which he wishes to be
admitted or when he is already residing in that Member State
as holder of a valid residence permit or national long-stay visa.
3. By way of derogation from paragraph 2, a Member State
may accept, in accordance with its national law, an application
submitted when the third-country national concerned is not in
possession of a valid residence permit but is legally present in
its territory.
4. By way of derogation from paragraph 2, a Member State
may provide that an application can only be submitted from
outside its territory, provided that such limitations, either for all
the third-country nationals or for specific categories of thirdcountry
nationals, are already set out in the existing national
law at the time of the adoption of this Directive.
Article 11
Procedural safeguards
1. The competent authorities of the Member States shall
adopt a decision on the complete application for an EU Blue
Card and notify the applicant in writing, in accordance with the
notification procedures laid down in the national law of the
Member State concerned, as soon as possible and at the latest
within 90 days of the application being lodged.
National law of the relevant Member State shall determine any
consequence of a decision not having been taken by the end of
the period provided for in the first subparagraph.
2. Where the information or documents supplied in support
of the application are inadequate, the competent authorities
shall notify the applicant of the additional information that is
required and set a reasonable deadline for providing it. The
period referred to in paragraph 1 shall be suspended until the
authorities have received the additional information or
documents required. If additional information or documents
have not been provided within the deadline, the application
may be rejected.
3. Any decision rejecting an application for an EU Blue Card,
a decision not to renew or to withdraw an EU Blue Card, shall
be notified in writing to the third-country national concerned
and, where relevant, to his employer in accordance with the
notification procedures under the relevant national law and
shall be open to legal challenge in the Member State
concerned, in accordance with national law. The notification
shall specify the reasons for the decision, the possible redress
procedures available and the time limit for taking action.
ENL 155/24 Official Journal of the European Union 18.6.2009
CHAPTER IV
RIGHTS
Article 12
Labour market access
1. For the first two years of legal employment in the Member
State concerned as an EU Blue Card holder, access to the labour
market for the person concerned shall be restricted to the
exercise of paid employment activities which meet the
conditions for admission set out in Article 5. After these first
two years, Member States may grant the persons concerned
equal treatment with nationals as regards access to highly
qualified employment.
2. For the first two years of legal employment in the Member
State concerned as an EU Blue Card holder, changes in
employer shall be subject to the prior authorisation in writing
of the competent authorities of the Member State of residence,
in accordance with national procedures and within the time
limits set out in Article 11(1). Modifications that affect the
conditions for admission shall be subject to prior communication
or, if provided for by national law, prior authorisation.
After these first two years, where the Member State concerned
does not make use of the possibility provided for in paragraph
1 regarding equal treatment, the person concerned shall, in
accordance with national procedures, communicate changes
that affect the conditions of Article 5 to the competent authorities
of the Member State of residence.
3. Member States may retain restrictions on access to
employment, provided such employment activities entail occasional
involvement in the exercise of public authority and the
responsibility for safeguarding the general interest of the State
and where, in accordance with existing national or Community
law, these activities are reserved to nationals.
4. Member States may retain restrictions on access to
employment activities, in cases where, in accordance with
existing national or Community law, these activities are
reserved to nationals, Union citizens or EEA citizens.
5. This Article shall be applied without prejudice to the
principle of Community preference as expressed in the
relevant provisions of the Acts of Accession of 2003 and
2005, in particular with respect to the rights of nationals of
the Member States concerned to access the labour market.
Article 13
Temporary unemployment
1. Unemployment in itself shall not constitute a reason for
withdrawing an EU Blue Card, unless the period of unemployment
exceeds three consecutive months, or it occurs
more than once during the period of validity of an EU Blue
Card.
2. During the period referred to in paragraph 1, the EU Blue
Card holder shall be allowed to seek and take up employment
under the conditions set out in Article 12.
3. Member States shall allow the EU Blue Card holder to
remain on their territory until the necessary authorisation
pursuant to Article 12(2) has been granted or denied. The
communication under Article 12(2) shall automatically end
the period of unemployment.
4. The EU Blue Card holder shall communicate the
beginning of the period of unemployment to the competent
authorities of the Member State of residence, in accordance
with the relevant national procedures.
Article 14
Equal treatment
1. EU Blue Card holders shall enjoy equal treatment with
nationals of the Member State issuing the Blue Card, as regards:
(a) working conditions, including pay and dismissal, as well as
health and safety requirements at the workplace;
(b) freedom of association and affiliation and membership of an
organisation representing workers or employers or of any
organisation whose members are engaged in a specific occupation,
including the benefits conferred by such organisations,
without prejudice to the national provisions on
public policy and public security;
(c) education and vocational training;
(d) recognition of diplomas, certificates and other professional
qualifications in accordance with the relevant national
procedures;
(e) provisions in national law regarding the branches of social
security as defined in Regulation (EEC) No 1408/71. The
special provisions in the Annex to Regulation (EC) No
859/2003 shall apply accordingly;
(f) without prejudice to existing bilateral agreements, payment
of income-related acquired statutory pensions in respect of
old age, at the rate applied by virtue of the law of the
debtor Member State(s) when moving to a third country;
(g) access to goods and services and the supply of goods and
services made available to the public, including procedures
for obtaining housing, as well as information and counselling
services afforded by employment offices;
(h) free access to the entire territory of the Member State
concerned, within the limits provided for by national law.
EN18.6.2009 Official Journal of the European Union L 155/25
2. With respect to paragraph 1(c) and (g) the Member State
concerned may restrict equal treatment as regards study and
maintenance grants and loans or other grants and loans
regarding secondary and higher education and vocational
training, and procedures for obtaining housing.
With respect to paragraph 1(c):
(a) access to university and post-secondary education may be
subject to specific prerequisites in accordance with national
law;
(b) the Member State concerned may restrict equal treatment to
cases where the registered or usual place of residence of the
EU Blue Card holder, or that of the family member for
whom benefits are claimed, lies within its territory.
Paragraph 1(g) shall be without prejudice to the freedom of
contract in accordance with Community and national law.
3. The right to equal treatment as laid down in paragraph 1
shall be without prejudice to the right of the Member State to
withdraw or to refuse to renew the EU Blue Card in accordance
with Article 9.
4. When the EU Blue Card holder moves to a second
Member State in accordance with Article 18 and a positive
decision on the issuing of an EU Blue Card has not yet been
taken, Member States may limit equal treatment in the areas
listed in paragraph 1, with the exception of 1(b) and (d). If,
during this period, Member States allow the applicant to work,
equal treatment with nationals of the second Member State in
all areas of paragraph 1 shall be granted.
Article 15
Family members
1. Directive 2003/86/EC shall apply with the derogations
laid down in this Article.
2. By way of derogation from Articles 3(1) and 8 of
Directive 2003/86/EC, family reunification shall not be made
dependent on the requirement of the EU Blue Card holder
having reasonable prospects of obtaining the right of
permanent residence and having a minimum period of
residence.
3. By way of derogation from the last subparagraph of
Article 4(1) and Article 7(2) of Directive 2003/86/EC, the integration
conditions and measures referred to therein may only be
applied after the persons concerned have been granted family
reunification.
4. By way of derogation from the first subparagraph of
Article 5(4) of Directive 2003/86/EC, residence permits for
family members shall be granted, where the conditions for
family reunification are fulfilled, at the latest within six
months from the date on which the application was lodged.
5. By way of derogation from Article 13(2) and (3) of
Directive 2003/86/EC, the duration of validity of the
residence permits of family members shall be the same as
that of the residence permits issued to the EU Blue Card
holder insofar as the period of validity of their travel
documents allows it.
6. By way of derogation from the second sentence of
Article 14(2) of Directive 2003/86/EC, Member States shall
not apply any time limit in respect of access to the labour
market.
This paragraph is applicable from 19 December 2011.
7. By way of derogation to Article 15(1) of Directive
2003/86/EC, for the purposes of calculation of the five years
of residence required for the acquisition of an autonomous
residence permit, residence in different Member States may be
cumulated.
8. If Member States have recourse to the option provided for
in paragraph 7, the provisions set out in Article 16 of this
Directive in respect of accumulation of periods of residence in
different Member States by the EU Blue Card holder shall apply
mutatis mutandis.
Article 16
EC long-term resident status for EU Blue Card holders
1. Directive 2003/109/EC shall apply with the derogations
laid down in this Article.
2. By way of derogation from Article 4(1) of Directive
2003/109/EC, the EU Blue Card holder having made use of
the possibility provided for in Article 18 of this Directive is
allowed to cumulate periods of residence in different Member
States in order to fulfil the requirement concerning the duration
of residence, if the following conditions are met:
(a) five years of legal and continuous residence within the
territory of the Community as an EU Blue Card holder; and
(b) legal and continuous residence for two years immediately
prior to the submission of the relevant application as an EU
Blue Card holder within the territory of the Member State
where the application for the long-term resident's EC
residence permit is lodged.
3. For the purpose of calculating the period of legal and
continuous residence in the Community and by way of derogation
from the first subparagraph of Article 4(3) of Directive
2003/109/EC, periods of absence from the territory of the
Community shall not interrupt the period referred to in
paragraph 2(a) of this Article if they are shorter than 12 consecutive
months and do not exceed in total 18 months within the
period referred to in paragraph 2(a) of this Article. This
paragraph shall apply also in cases where the EU Blue Card
holder has not made use of the possibility provided for in
Article 18.
ENL 155/26 Official Journal of the European Union 18.6.2009
4. By way of derogation from Article 9(1)(c) of Directive
2003/109/EC, Member States shall extend to 24 consecutive
months the period of absence from the territory of the
Community which is allowed to an EC long-term resident
holder of a long-term residence permit with the remark
referred to in Article 17(2) of this Directive and of his family
members having been granted the EC long-term resident status.
5. The derogations to Directive 2003/109/EC set out in paragraphs
3 and 4 of this Article may be restricted to cases where
the third-country national concerned can present evidence that
he has been absent from the territory of the Community to
exercise an economic activity in an employed or selfemployed
capacity, or to perform a voluntary service, or to
study in his own country of origin.
6. Article 14(1)(f) and 15 shall continue to apply for holders
of a long-term residence permit with the remark referred to in
Article 17(2), where applicable, after the EU Blue Card holder
has become an EC long-term resident.
Article 17
Long-term residence permit
1. EU Blue Card holders who fulfil the conditions set out in
Article 16 of this Directive for the acquisition of the EC longterm
resident status shall be issued with a residence permit in
accordance with Article 1(2)(a) of Regulation (EC) No
1030/2002.
2. In the residence permit referred to in paragraph 1 of this
Article under the heading ‘remarks’, Member States shall enter
‘Former EU Blue Card holder’.
CHAPTER V
RESIDENCE IN OTHER MEMBER STATES
Article 18
Conditions
1. After eighteen months of legal residence in the first
Member State as an EU Blue Card holder, the person
concerned and his family members may move to a Member
State other than the first Member State for the purpose of
highly qualified employment under the conditions set out in
this Article.
2. As soon as possible and no later than one month after
entering the territory of the second Member State, the EU Blue
Card holder and/or his employer shall present an application for
an EU Blue Card to the competent authority of that Member
State and present all the documents proving the fulfilment of
the conditions set out in Article 5 for the second Member State.
The second Member State may decide, in accordance with
national law, not to allow the applicant to work until the
positive decision on the application has been taken by its
competent authority.
3. The application may also be presented to the competent
authorities of the second Member State while the EU Blue Card
holder is still residing in the territory of the first Member State.
4. In accordance with the procedures set out in Article 11,
the second Member State shall process the application and
inform in writing the applicant and the first Member State of
its decision to either:
(a) issue an EU Blue Card and allow the applicant to reside on
its territory for highly qualified employment where the
conditions set in this Article are fulfilled and under the
conditions set out in Articles 7 to 14; or
(b) refuse to issue an EU Blue Card and oblige the applicant and
his family members, in accordance with the procedures
provided for by national law, including removal procedures,
to leave its territory where the conditions set out in this
Article are not fulfilled. The first Member State shall immediately
readmit without formalities the EU Blue Card
holder and his family members. This shall also apply if
the EU Blue Card issued by the first Member State has
expired or has been withdrawn during the examination of
the application. Article 13 shall apply after readmission.
5. If the EU Blue Card issued by the first Member State
expires during the procedure, Member States may issue, if
required by national law, national temporary residence
permits, or equivalent authorisations, allowing the applicant to
continue to stay legally on its territory until a decision on the
application has been taken by the competent authorities.
6. The applicant and/or his employer may be held
responsible for the costs related to the return and readmission
of the EU Blue Card holder and his family members, including
costs incurred by public funds, where applicable, pursuant to
paragraph 4(b).
7. In application of this Article, Member States may continue
to apply volumes of admission as referred to in Article 6.
8. From the second time that an EU Blue Card holder, and
where applicable, his family members, makes use of the possibility
to move to another Member State under the terms of this
Chapter, ‘first Member State’ shall be understood as the Member
States from where the person concerned moves and ‘second
Member State’ as the Member State to which he is applying
to reside.
Article 19
Residence in the second Member State for family members
1. When the EU Blue Card holder moves to a second
Member State in accordance with Article 18 and when the
family was already constituted in the first Member State, the
members of his family shall be authorised to accompany or join
him.
EN18.6.2009 Official Journal of the European Union L 155/27
2. No later than one month after entering the territory of the
second Member State, the family members concerned or the EU
Blue card holder, in accordance with national law, shall submit
an application for a residence permit as a family member to the
competent authorities of that Member State.
In cases where the residence permit of the family members
issued by the first Member State expires during the procedure
or no longer entitles the holder to reside legally on the territory
of the second Member State, Member States shall allow the
person to stay in their territory, if necessary by issuing
national temporary residence permits, or equivalent authorisations,
allowing the applicant to continue to stay legally on
their territory with the EU Blue Card holder until a decision on
the application has been taken by the competent authorities of
the second Member State.
3. The second Member State may require the family
members concerned to present with their application for a
residence permit:
(a) their residence permit in the first Member State and a valid
travel document, or their certified copies, as well as a visa, if
required;
(b) evidence that they have resided as members of the family of
the EU Blue Card holder in the first Member State;
(c) evidence that they have a sickness insurance covering all
risks in the second Member State, or that the EU Blue
Card holder has such insurance for them.
4. The second Member State may require the EU Blue Card
holder to provide evidence that the holder:
(a) has an accommodation regarded as normal for a
comparable family in the same region and which meets
the general health and safety standards in the Member
State concerned;
(b) has stable and regular resources which are sufficient to
maintain himself and the members of his family, without
recourse to the social assistance of the Member State
concerned. Member States shall evaluate these resources
by reference to their nature and regularity and may take
into account the level of minimum national wages and
pensions as well as the number of family members.
5. Derogations contained in Article 15 shall continue to
apply mutatis mutandis.
6. Where the family was not already constituted in the first
Member State, Article 15 shall apply.
CHAPTER VI
FINAL PROVISIONS
Article 20
Implementing measures
1. Member States shall communicate to the Commission and
the other Member States if legislative or regulatory measures are
enacted in respect of Articles 6, 8(2) and 18(6).
Those Member States which make use of the provisions of
Article 8(4) shall communicate to the Commission and to the
other Member States a duly justified decision indicating the
countries and sectors concerned.
2. Annually, and for the first time no later than 19 June
2013, Member States shall, in accordance with Regulation
(EC) No 862/2007, communicate to the Commission statistics
on the volumes of third-country nationals who have been
granted an EU Blue Card and, as far as possible, volumes of
third-country nationals whose EU Blue Card has been renewed
or withdrawn, during the previous calendar year, indicating their
nationality and, as far as possible, their occupation. Statistics on
admitted family members shall be communicated in the same
manner, except as regards information on their occupation. In
relation to EU Blue Card holders and members of their families
admitted in accordance with Articles 18, 19 and 20, the information
provided shall, in addition, specify, as far as possible, the
Member State of previous residence.
3. For the purpose of the implementation of Article 5(3) and,
where appropriate, 5(5), reference shall be made to Commission
(Eurostat) data and, where appropriate, national data.
Article 21
Reports
Every three years, and for the first time no later than 19 June
2014, the Commission shall report to the European Parliament
and the Council on the application of this Directive in the
Member States, in particular the assessment of the impact of
Articles 3(4), 5 and 18, and shall propose any amendments that
are necessary.
The Commission shall notably assess the relevance of the salary
threshold defined in Article 5 and of the derogations provided
for in that Article, taking into account, inter alia, the diversity of
the economical, sectorial and geographical situations within the
Member States.
Article 22
Contact points
1. Member States shall appoint contact points which shall be
responsible for receiving and transmitting the information
referred to in Articles 16, 18 and 20.
2. Member States shall provide appropriate cooperation in
the exchange of the information and documentation referred
to in paragraph 1.
ENL 155/28 Official Journal of the European Union 18.6.2009
Article 23
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 19 June 2011. They shall forthwith inform the
Commission thereof.
When Member States adopt those provisions, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. Member
States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.
Article 24
Entry into force
This Directive shall enter into force on the day following its
publication in the Official Journal of the European Union.
Article 25
Addressees
This Directive is addressed to the Member States, in accordance
with the Treaty establishing the European Community.
Done at Brussels, 25 May 2009.
For the Council
The President
J. ŠEBESTA
EN18.6.2009 Official Journal of the European Union L 155/29
I
(Legislative acts)
DIRECTIVES
DIRECTIVE 2011/98/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 December 2011
on a single application procedure for a single permit for third-country nationals to reside and work
in the territory of a Member State and on a common set of rights for third-country workers legally
residing in a Member State
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular points (a) and (b) of Article 79(2)
thereof,
Having regard to the proposal from the European Commission,
Having regard to the opinion of the European Economic and
Social Committee (1),
Having regard to the opinion of the Committee of the
Regions (2),
Acting in accordance with the ordinary legislative procedure (3),
Whereas:
(1) For the gradual establishment of an area of freedom,
security and justice, the Treaty on the Functioning of
the European Union (TFEU) provides for measures to
be adopted in the fields of asylum, immigration and
protection of the rights of third-country nationals.
(2) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, acknowledged the need for
harmonisation of national law governing the conditions
for admission and residence of third-country nationals. In
this context, it stated in particular that the European
Union should ensure fair treatment of third-country
nationals who are legally residing in the territory of the
Member States and that a more vigorous integration
policy should aim to grant them rights and obligations
comparable to those of citizens of the Union. The
European Council accordingly asked the Council to
adopt the legal instruments on the basis of Commission
proposals. The need for achieving the objectives defined
at Tampere was reaffirmed by the Stockholm
Programme, which was adopted by the European
Council at its meeting of 10 and 11 December 2009.
(3) Provisions for a single application procedure leading to a
combined title encompassing both residence and work
permits within a single administrative act will contribute
to simplifying and harmonising the rules currently
applicable in Member States. Such procedural simplification
has already been introduced by several Member
States and has made for a more efficient procedure both
for the migrants and for their employers, and has
allowed easier controls of the legality of their residence
and employment.
(4) In order to allow initial entry into their territory, Member
States should be able to issue a single permit or, if they
issue single permits only after entry, a visa. Member
States should issue such single permits or visas in a
timely manner.
(5) A set of rules governing the procedure for examination
of the application for a single permit should be laid
down. That procedure should be effective and
manageable, taking account of the normal workload of
the Member States’ administrations, as well as transparent
and fair, in order to offer appropriate legal certainty to
those concerned.
(6) The provisions of this Directive should be without
prejudice to the competence of the Member States to
regulate the admission, including the volumes of
admission, of third-country nationals for the purpose of
work.
EN23.12.2011 Official Journal of the European Union L 343/1
(1) OJ C 27, 3.2.2009, p. 114.
(2) OJ C 257, 9.10.2008, p. 20.
(3) Position of the European Parliament of 24 March 2011 (not yet
published in the Official Journal) and position of the Council at
first reading of 24 November 2011 (not yet published in the
Official Journal). Position of the European Parliament of
13 December 2011 (not yet published in the Official Journal).
(7) Posted third-country nationals should not be covered by
this Directive. This should not prevent third-country
nationals who are legally residing and working in a
Member State and posted to another Member State
from continuing to enjoy equal treatment with respect
to nationals of the Member State of origin for the
duration of their posting, in respect of those terms and
conditions of employment which are not affected by the
application of Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services (1).
(8) Third-country nationals who have acquired long-term
resident status in accordance with Council Directive
2003/109/EC of 25 November 2003 on the status of
third-country nationals who are long-term residents (2)
should not be covered by this Directive given their
more privileged status and their specific type of
residence permit ‘long-term resident-EU’.
(9) Third-country nationals who have been admitted to the
territory of a Member State to work on a seasonal basis
should not be covered by this Directive given their
temporary status.
(10) The obligation on the Member States to determine
whether the application is to be made by a thirdcountry
national or by his or her employer should be
without prejudice to any arrangements requiring both to
be involved in the procedure. The Member States should
decide whether the application for a single permit is to
be made in the Member State of destination or from a
third country. In cases where the third-country national
is not allowed to make an application from a third
country, Member States should ensure that the application
may be made by the employer in the Member
State of destination.
(11) The provisions of this Directive on the single application
procedure and on the single permit should not concern
uniform or long-stay visas.
(12) The designation of the competent authority under this
Directive should be without prejudice to the role and
responsibilities of other authorities and, where applicable,
the social partners, with regard to the examination of,
and the decision on, the application.
(13) The deadline for adopting a decision on the application
should not include the time required for the recognition
of professional qualifications or the time required for
issuing a visa. This Directive should be without
prejudice to national procedures on the recognition of
diplomas.
(14) The single permit should be drawn up in accordance
with Council Regulation (EC) No 1030/2002, of
13 June 2002 laying down a uniform format for
residence permits for third-country nationals (3),
enabling Member States to enter further information, in
particular as to whether or not the person is permitted to
work. A Member State should indicate, inter alia, for the
purpose of better control of migration, not only on the
single permit but also on all the issued residence permits,
the information relating to the permission to work, irrespective
of the type of the permit or the residence title
on the basis of which the third-country national has been
admitted to the territory and has been given access to the
labour market of that Member State.
(15) The provisions of this Directive on residence permits for
purposes other than work should apply only to the
format of such permits and should be without
prejudice to Union or national rules on admission
procedures and on procedures for issuing such permits.
(16) The provisions of this Directive on the single permit and
on the residence permit issued for purposes other than
work should not prevent Member States from issuing an
additional paper document in order to be able to give
more precise information on the employment relationship
for which the format of the residence permit
leaves insufficient space. Such a document can serve to
prevent the exploitation of third-country nationals and
combat illegal employment but should be optional for
Member States and should not serve as a substitute for a
work permit thereby compromising the concept of the
single permit. Technical possibilities offered by Article 4
of Regulation (EC) No 1030/2002 and point (a)16 of the
Annex thereto can also be used to store such information
in an electronic format.
(17) The conditions and criteria on the basis of which an
application to issue, amend or renew a single permit
can be rejected, or on the basis of which the single
permit can be withdrawn, should be objective and
should be laid down in national law including the obligation
to respect the principle of Union preference as
expressed in particular in the relevant provisions of the
2003 and 2005 Acts of Accession. Rejection and withdrawal
decisions should be duly reasoned.
(18) Third-country nationals who are in possession of a valid
travel document and a single permit issued by a Member
State applying the Schengen acquis in full, should be
allowed to enter into and move freely within the
territory of the Member States applying the Schengen
acquis in full, for a period up to three months in any
six-month period in accordance with Regulation (EC)
No 562/2006 of the European Parliament and of the
Council of 15 March 2006 establishing a Community
ENL 343/2 Official Journal of the European Union 23.12.2011
(1) OJ L 18, 21.1.1997, p. 1.
(2) OJ L 16, 23.1.2004, p. 44. (3) OJ L 157, 15.6.2002, p. 1.
Code on the rules governing the movement of persons
across borders (Schengen Borders Code) (1) and
Article 21 of the Convention implementing the
Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic
Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at
their common borders (2) (Schengen Convention).
(19) In the absence of horizontal Union legislation, the rights
of third-country nationals vary, depending on the
Member State in which they work and on their
nationality. With a view to developing further a
coherent immigration policy and narrowing the rights
gap between citizens of the Union and third-country
nationals legally working in a Member State and complementing
the existing immigration acquis, a set of rights
should be laid down in order, in particular, to specify the
fields in which equal treatment between a Member State’s
own nationals and such third-country nationals who are
not yet long-term residents is provided. Such provisions
are intended to establish a minimum level playing field
within the Union, to recognise that such third-country
nationals contribute to the Union economy through their
work and tax payments and to serve as a safeguard to
reduce unfair competition between a Member State’s own
nationals and third-country nationals resulting from the
possible exploitation of the latter. A third–country
worker in this Directive should be defined, without
prejudice to the interpretation of the concept of
employment relationship in other provisions of Union
law, as a third-country national who has been admitted
to the territory of a Member State, who is legally residing
and who is allowed, in the context of a paid relationship,
to work there in accordance with national law or
practice.
(20) All third-country nationals who are legally residing and
working in Member States should enjoy at least a
common set of rights based on equal treatment with
the nationals of their respective host Member State, irrespective
of the initial purpose of or basis for admission.
The right to equal treatment in the fields specified by this
Directive should be granted not only to those thirdcountry
nationals who have been admitted to a
Member State to work but also to those who have
been admitted for other purposes and have been given
access to the labour market of that Member State in
accordance with other provisions of Union or national
law, including family members of a third-country worker
who are admitted to the Member State in accordance
with Council Directive 2003/86/EC of 22 September
2003 on the right to family reunification (3); thirdcountry
nationals who are admitted to the territory of
a Member State in accordance with Council Directive
2004/114/EC of 13 December 2004 on the conditions
of admission of third-country nationals for the purposes
of studies, pupil exchange, unremunerated training or
voluntary service (4); and researchers admitted in
accordance with Council Directive 2005/71/EC of
12 October 2005 on a specific procedure for admitting
third-country nationals for the purposes of scientific
research (5).
(21) The right to equal treatment in specified fields should be
strictly linked to the third-country national’s legal
residence and the access given to the labour market in
a Member State, which are enshrined in the single permit
encompassing the authorisation to reside and work and
in residence permits issued for other purposes containing
information on the permission to work.
(22) Working conditions as referred to in this Directive
should cover at least pay and dismissal, health and
safety at the workplace, working time and leave taking
into account collective agreements in force.
(23) A Member State should recognise professional qualifications
acquired by a third-country national in another
Member State in the same way as those of citizens of the
Union and should take into account qualifications
acquired in a third country in accordance with
Directive 2005/36/EC of the European Parliament and
of the Council of 7 September 2005 on the recognition
of professional qualifications (6). The right to equal
treatment accorded to third-country workers as regards
recognition of diplomas, certificates and other professional
qualifications in accordance with the relevant
national procedures should be without prejudice to the
competence of Member States to admit such thirdcountry
workers to their labour market.
(24) Third-country workers should enjoy equal treatment as
regards social security. Branches of social security are
defined in Regulation (EC) No 883/2004 of the
European Parliament and of the Council of 29 April
2004 on the coordination of social security systems (7).
The provisions on equal treatment concerning social
security in this Directive should also apply to workers
admitted to a Member State directly from a third
country. Nevertheless, this Directive should not confer
on third-country workers more rights than those
already provided in existing Union law in the field of
social security for third-country nationals who are in
cross-border situations. This Directive, furthermore,
should not grant rights in relation to situations which
lie outside the scope of Union law, such as in relation to
family members residing in a third country. This
Directive should grant rights only in relation to family
members who join third-country workers to reside in a
Member State on the basis of family reunification or
family members who already reside legally in that
Member State.
EN23.12.2011 Official Journal of the European Union L 343/3
(1) OJ L 105, 13.4.2006, p. 1.
(2) OJ L 239, 22.9.2000, p. 19.
(3) OJ L 251, 3.10.2003, p. 12.
(4) OJ L 375, 23.12.2004, p. 12.
(5) OJ L 289, 3.11.2005, p. 15.
(6) OJ L 255, 30.9.2005, p. 22.
(7) OJ L 166, 30.4.2004, p. 1.
(25) Member States should ensure at least equal treatment of
third-country nationals who are in employment or who,
after a minimum period of employment, are registered as
unemployed. Any restrictions to the equal treatment in
the field of social security under this Directive should be
without prejudice to the rights conferred pursuant to
Regulation (EU) No 1231/2010 of the European
Parliament and of the Council of 24 November 2010
extending Regulation (EC) No 883/2004 and Regulation
(EC) No 987/2009 to nationals of third countries who
are not already covered by these Regulations solely on
the ground of their nationality (1).
(26) Union law does not limit the power of the Member
States to organise their social security schemes. In the
absence of harmonisation at Union level, it is for each
Member State to lay down the conditions under which
social security benefits are granted, as well as the amount
of such benefits and the period for which they are
granted. However, when exercising that power, Member
States should comply with Union law.
(27) Equal treatment of third-country workers should not
apply to measures in the field of vocational training
which are financed under social assistance schemes.
(28) This Directive should be applied without prejudice to
more favourable provisions contained in Union law
and applicable international instruments.
(29) Member States should give effect to the provisions of this
Directive without discrimination on the basis of sex, race,
colour, ethnic or social origin, genetic characteristics,
language, religion or beliefs, political or other opinions,
membership of a national minority, fortune, birth,
disabilities, age or sexual orientation in particular in
accordance with Council Directive 2000/43/EC of
29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or
ethnic origin (2) and Council Directive 2000/78/EC of
27 November 2000 establishing a general framework
for equal treatment in employment and occupation (3).
(30) Since the objectives of this Directive, namely laying down
a single application procedure for issuing a single permit
for third-country nationals to work in the territory of a
Member State and a common set of rights for thirdcountry
workers legally residing in a Member State,
cannot be sufficiently achieved by the Member States
and can therefore, by reason of the scale and effects of
the action, be better achieved at Union level, the Union
may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on
European Union (TEU). In accordance with the
principle of proportionality as set out in that Article,
this Directive does not go beyond what is necessary in
order to achieve those objectives.
(31) This Directive respects the fundamental rights and
observes the principles recognised by the Charter of
Fundamental Rights of the European Union in
accordance with Article 6(1) of the TEU.
(32) In accordance with the Joint Political Declaration of
Member States and the Commission on explanatory
documents of 28 September 2011, Member States have
undertaken to accompany, in justified cases, the notification
of their transposition measures with one or more
documents explaining the relationship between the
components of a directive and the corresponding parts
of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of
such documents to be justified.
(33) In accordance with Articles 1 and 2 of the Protocol
(No 21) on the position of the United Kingdom and
Ireland, annexed to the TEU and to the TFEU, and
without prejudice to Article 4 of that Protocol, those
Member States are not taking part in the adoption of
this Directive and are not bound by it or subject to its
application.
(34) In accordance with Articles 1 and 2 of the Protocol
(No 22) on the position of Denmark, annexed to the
TEU and to the TFEU, Denmark is not taking part in
the adoption of this Directive and is not bound by it
or subject to its application,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
1. This Directive lays down:
(a) a single application procedure for issuing a single permit for
third-country nationals to reside for the purpose of work in
the territory of a Member State, in order to simplify the
procedures for their admission and to facilitate the control
of their status; and
(b) a common set of rights to third-country workers legally
residing in a Member State, irrespective of the purposes
for which they were initially admitted to the territory of
that Member State, based on equal treatment with
nationals of that Member State.
2. This Directive is without prejudice to the Member States’
powers concerning the admission of third-country nationals to
their labour markets.
ENL 343/4 Official Journal of the European Union 23.12.2011
(1) OJ L 344, 29.12.2010, p. 1.
(2) OJ L 180, 19.7.2000, p. 22.
(3) OJ L 303, 2.12.2000, p. 16.
Article 2
Definitions
For the purposes of this Directive, the following definitions
apply:
(a) ‘third-country national’ means a person who is not a citizen
of the Union within the meaning of Article 20(1) TFEU;
(b) ‘third-country worker’ means a third-country national who
has been admitted to the territory of a Member State and
who is legally residing and is allowed to work in the context
of a paid relationship in that Member State in accordance
with national law or practice;
(c) ‘single permit’ means a residence permit issued by the
authorities of a Member State allowing a third-country
national to reside legally in its territory for the purpose of
work;
(d) ‘single application procedure’ means any procedure leading,
on the basis of a single application made by a third-country
national, or by his or her employer, for the authorisation of
residence and work in the territory of a Member State, to a
decision ruling on that application for the single permit.
Article 3
Scope
1. This Directive shall apply to:
(a) third-country nationals who apply to reside in a Member
State for the purpose of work;
(b) third-country nationals who have been admitted to a
Member State for purposes other than work in accordance
with Union or national law, who are allowed to work and
who hold a residence permit in accordance with Regulation
(EC) No 1030/2002; and
(c) third-country nationals who have been admitted to a
Member State for the purpose of work in accordance with
Union or national law.
2. This Directive shall not apply to third-country nationals:
(a) who are family members of citizens of the Union who have
exercised, or are exercising, their right to free movement
within the Union in accordance with Directive 2004/38/EC
of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family
members to move and reside freely within the territory of
the Member States (1);
(b) who, together with their family members, and irrespective
of their nationality, enjoy rights of free movement
equivalent to those of citizens of the Union under
agreements either between the Union and the Member
States or between the Union and third countries;
(c) who are posted for as long as they are posted;
(d) who have applied for admission or have been admitted to
the territory of a Member State to work as intra-corporate
transferees;
(e) who have applied for admission or have been admitted to
the territory of a Member State as seasonal workers or au
pairs;
(f) who are authorised to reside in a Member State on the basis
of temporary protection, or who have applied for authorisation
to reside there on that basis and are awaiting a
decision on their status;
(g) who are beneficiaries of international protection under
Council Directive 2004/83/EC of 29 April 2004 on
minimum standards for the qualification and status of
third-country nationals or stateless persons as refugees or
as persons who otherwise need international protection and
the content of the protection granted (2) or who have
applied for international protection under that Directive
and whose application has not been the subject of a final
decision;
(h) who are beneficiaries of protection in accordance with
national law, international obligations or the practice of a
Member State or have applied for protection in accordance
with national law, international obligations or the practice
of a Member State and whose application has not been the
subject of a final decision;
(i) who are long-term residents in accordance with Directive
2003/109/EC;
(j) whose removal has been suspended on the basis of fact or
law;
(k) who have applied for admission or who have been admitted
to the territory of a Member State as self-employed workers;
(l) who have applied for admission or have been admitted as
seafarers for employment or work in any capacity on board
of a ship registered in or sailing under the flag of a Member
State.
3. Member States may decide that Chapter II does not apply
to third-country nationals who have been either authorised to
work in the territory of a Member State for a period not
exceeding six months or who have been admitted to a
Member State for the purpose of study.
EN23.12.2011 Official Journal of the European Union L 343/5
(1) OJ L 158, 30.4.2004, p. 77. (2) OJ L 304, 30.9.2004, p. 12.
4. Chapter II shall not apply to third-country nationals who
are allowed to work on the basis of a visa.
CHAPTER II
SINGLE APPLICATION PROCEDURE AND SINGLE PERMIT
Article 4
Single application procedure
1. An application to issue, amend or renew a single permit
shall be submitted by way of a single application procedure.
Member States shall determine whether applications for a single
permit are to be made by the third-country national or by the
third-country national’s employer. Member States may also
decide to allow an application from either of the two. If the
application is to be submitted by the third-country national,
Member States shall allow the application to be introduced
from a third country or, if provided for by national law, in
the territory of the Member State in which the third-country
national is legally present.
2. Member States shall examine an application made under
paragraph 1 and shall adopt a decision to issue, amend or
renew the single permit if the applicant fulfils the requirements
specified by Union or national law. A decision to issue, amend
or renew the single permit shall constitute a single administrative
act combining a residence permit and a work permit.
3. The single application procedure shall be without
prejudice to the visa procedure which may be required for
initial entry.
4. Member States shall issue a single permit, where the
conditions provided for are met, to third-country nationals
who apply for admission and to third-country nationals
already admitted who apply to renew or modify their
residence permit after the entry into force of the national implementing
provisions.
Article 5
Competent authority
1. Member States shall designate the authority competent to
receive the application and to issue the single permit.
2. The competent authority shall adopt a decision on the
complete application as soon as possible and in any event
within four months of the date on which the application was
lodged.
The time limit referred to in the first subparagraph may be
extended in exceptional circumstances, linked to the complexity
of the examination of the application.
Where no decision is taken within the time limit provided for
in this paragraph, any consequences shall be determined by
national law.
3. The competent authority shall notify the decision to the
applicant in writing in accordance with the notification
procedures laid down in the relevant national law.
4. If the information or documents in support of the application
are incomplete according to the criteria specified in
national law, the competent authority shall notify the
applicant in writing of the additional information or
documents required, setting a reasonable deadline to provide
them. The time limit referred to in paragraph 2 shall be
suspended until the competent authority or other relevant
authorities have received the additional information required.
If the additional information or documents is not provided
within the deadline set, the competent authority may reject
the application.
Article 6
Single permit
1. Member States shall issue a single permit using the
uniform format as laid down in Regulation (EC) No 1030/2002
and shall indicate the information relating to the permission to
work in accordance with point (a)7.5-9 of the Annex thereto.
Member States may indicate additional information related to
the employment relationship of the third-country national (such
as the name and address of the employer, place of work, type of
work, working hours, remuneration) in paper format, or store
such data in electronic format as referred to in Article 4 of
Regulation (EC) No 1030/2002 and in point (a)16 of the
Annex thereto.
2. When issuing the single permit Member States shall not
issue additional permits as proof of authorisation to access the
labour market.
Article 7
Residence permits issued for purposes other than work
1. When issuing residence permits in accordance with Regulation
(EC) No 1030/2002 Member States shall indicate the
information relating to the permission to work irrespective of
the type of the permit.
Member States may indicate additional information related to
the employment relationship of the third-country national (such
as the name and address of the employer, place of work, type of
work, working hours, remuneration) in paper format, or store
such data in electronic format as referred to in Article 4 of
Regulation (EC) No 1030/2002 and point (a)16 of the Annex
thereto.
2. When issuing residence permits in accordance with Regulation
(EC) No 1030/2002, Member States shall not issue additional
permits as proof of authorisation to access the labour
market.
ENL 343/6 Official Journal of the European Union 23.12.2011
Article 8
Procedural guarantees
1. Reasons shall be given in the written notification of a
decision rejecting an application to issue, amend or renew a
single permit, or a decision withdrawing a single permit on
the basis of criteria provided for by Union or national law.
2. A decision rejecting the application to issue, amend or
renew or withdrawing a single permit shall be open to legal
challenge in the Member State concerned, in accordance with
national law. The written notification referred to in paragraph 1
shall specify the court or administrative authority where the
person concerned may lodge an appeal and the time limit
therefor.
3. An application may be considered as inadmissible on the
grounds of volume of admission of third-country nationals
coming for employment and, on that basis, need not to be
processed.
Article 9
Access to information
Member States shall provide, upon request, adequate
information to the third-country national and the future
employer on the documents required to make a complete appli­
cation.
Article 10
Fees
Member States may require applicants to pay fees, where appropriate,
for handling applications in accordance with this
Directive. The level of such fees shall be proportionate and
may be based on the services actually provided for the
processing of applications and the issuance of permits.
Article 11
Rights on the basis of the single permit
Where a single permit has been issued in accordance with
national law, it shall authorise, during its period of validity,
its holder at least to:
(a) enter and reside in the territory of the Member State issuing
the single permit, provided that the holder meets all
admission requirements in accordance with national law;
(b) have free access to the entire territory of the Member State
issuing the single permit within the limits provided for by
national law;
(c) exercise the specific employment activity authorised under
the single permit in accordance with national law;
(d) be informed about the holder’s own rights linked to the
permit conferred by this Directive and/or by national law.
CHAPTER III
RIGHT TO EQUAL TREATMENT
Article 12
Right to equal treatment
1. Third-country workers as referred to in points (b) and (c)
of Article 3(1) shall enjoy equal treatment with nationals of the
Member State where they reside with regard to:
(a) working conditions, including pay and dismissal as well as
health and safety at the workplace;
(b) freedom of association and affiliation and membership of an
organisation representing workers or employers or of any
organisation whose members are engaged in a specific occupation,
including the benefits conferred by such organisations,
without prejudice to the national provisions on
public policy and public security;
(c) education and vocational training;
(d) recognition of diplomas, certificates and other professional
qualifications in accordance with the relevant national
procedures;
(e) branches of social security, as defined in Regulation (EC)
No 883/2004;
(f) tax benefits, in so far as the worker is deemed to be resident
for tax purposes in the Member State concerned;
(g) access to goods and services and the supply of goods and
services made available to the public including procedures
for obtaining housing as provided by national law, without
prejudice to the freedom of contract in accordance with
Union and national law;
(h) advice services afforded by employment offices.
2. Member States may restrict equal treatment:
(a) under point (c) of paragraph 1 by:
(i) limiting its application to those third-country workers
who are in employment or who have been employed
and who are registered as unemployed;
(ii) excluding those third-country workers who have been
admitted to their territory in conformity with Directive
2004/114/EC;
(iii) excluding study and maintenance grants and loans or
other grants and loans;
EN23.12.2011 Official Journal of the European Union L 343/7
(iv) laying down specific prerequisites including language
proficiency and the payment of tuition fees, in
accordance with national law, with respect to access
to university and post-secondary education and to vocational
training which is not directly linked to the
specific employment activity;
(b) by limiting the rights conferred on third-country workers
under point (e) of paragraph 1, but shall not restrict such
rights for third-country workers who are in employment or
who have been employed for a minimum period of six
months and who are registered as unemployed.
In addition, Member States may decide that point (e) of
paragraph 1 with regard to family benefits shall not apply
to third-country nationals who have been authorised to
work in the territory of a Member State for a period not
exceeding six months, to third-country nationals who have
been admitted for the purpose of study, or to third-country
nationals who are allowed to work on the basis of a visa.
(c) under point (f) of paragraph 1 with respect to tax benefits
by limiting its application to cases where the registered or
usual place of residence of the family members of the thirdcountry
worker for whom he/she claims benefits, lies in the
territory of the Member State concerned.
(d) under point (g) of paragraph 1 by:
(i) limiting its application to those third-country workers
who are in employment;
(ii) restricting access to housing;
3. The right to equal treatment laid down in paragraph 1
shall be without prejudice to the right of the Member State to
withdraw or to refuse to renew the residence permit issued
under this Directive, the residence permit issued for purposes
other than work, or any other authorisation to work in a
Member State.
4. Third-country workers moving to a third country, or their
survivors who reside in a third country and who derive rights
from those workers, shall receive, in relation to old age,
invalidity and death, statutory pensions based on those
workers’ previous employment and acquired in accordance
with the legislation referred to in Article 3 of Regulation (EC)
No 883/2004, under the same conditions and at the same rates
as the nationals of the Member States concerned when they
move to a third country.
CHAPTER IV
FINAL PROVISIONS
Article 13
More favourable provisions
1. This Directive shall apply without prejudice to more
favourable provisions of:
(a) Union law, including bilateral and multilateral agreements
between the Union, or the Union and its Member States, on
the one hand and one or more third countries on the other;
and
(b) bilateral or multilateral agreements between one or more
Member States and one or more third countries.
2. This Directive shall be without prejudice to the right of
Member States to adopt or maintain provisions that are more
favourable to the persons to whom it applies.
Article 14
Information to the general public
Each Member State shall make available to the general public a
regularly updated set of information concerning the conditions
of third-country nationals’ admission to and residence in its
territory in order to work there.
Article 15
Reporting
1. Periodically, and for the first time by 25 December 2016,
the Commission shall present a report to the European
Parliament and the Council on the application of this
Directive in the Member States and shall propose amendments
it deems necessary.
2. Annually, and for the first time by 25 December 2014,
Member States shall communicate to the Commission statistics
on the volumes of third-country nationals who have been
granted a single permit during the previous calendar year, in
accordance with Regulation (EC) No 862/2007 of the European
Parliament and of the Council of 11 July 2007 on Community
statistics on migration and international protection (1).
Article 16
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 25 December 2013. They shall forthwith
communicate to the Commission the text of those provisions.
When Member States adopt those measures, they shall contain a
reference to this Directive or shall be accompanied by such a
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 national law which they adopt in
the field covered by this Directive.
ENL 343/8 Official Journal of the European Union 23.12.2011
(1) OJ L 199, 31.7.2007, p. 23.
Article 17
Entry into force
This Directive shall enter into force on the day following its publication in the Official Journal of the European
Union.
Article 18
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Strasbourg, 13 December 2011.
For the European Parliament
The President
J. BUZEK
For the Council
The President
M. SZPUNAR
EN23.12.2011 Official Journal of the European Union L 343/9
Volume I - 36
E. Long Term Residents
1. Council Directive 2003/109/EC of 25 November 2003 concerning
the status of third-country nationals who are long-term resi-
dents
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE 2003/109/EC
of 25 November 2003
concerning the status of third-country nationals who are long-term residents
(OJ L 16, 23.1.2004, p. 44)
Amended by:
Official Journal
No page date
►M1 Directive 2011/51/EU of the European Parliament and of the Council of
11 May 2011
L 132 1 19.5.2011
2003L0109 — EN — 20.05.2011 — 001.001 — 1
COUNCIL DIRECTIVE 2003/109/EC
of 25 November 2003
concerning the status of third-country nationals who are long-term
residents
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 63(3) and (4) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the European Economic and Social
Committee (3),
Having regard to the opinion of the Committee of the Regions (4),
Whereas:
(1) With a view to the progressive establishment of an area of
freedom, security and justice, the Treaty establishing the
European Community provides both for the adoption of
measures aimed at ensuring the free movement of persons, in
conjunction with flanking measures relating to external border
controls, asylum and immigration, and for the adoption of
measures relating to asylum, immigration and safeguarding the
rights of third-country nationals.
(2) The European Council, at its special meeting in Tampere on 15
and 16 October 1999, stated that the legal status of third-country
nationals should be approximated to that of Member States'
nationals and that a person who has resided legally in a
Member State for a period of time to be determined and who
holds a long-term residence permit should be granted in that
Member State a set of uniform rights which are as near as
possible to those enjoyed by citizens of the European Union.
(3) This Directive respects the fundamental rights and observes the
principles recognised in particular by the European Convention
for the Protection of Human Rights and Fundamental Freedoms
and by the Charter of Fundamental Rights of the European
Union.
(4) The integration of third-country nationals who are long-term
residents in the Member States is a key element in promoting
economic and social cohesion, a fundamental objective of the
Community stated in the Treaty.
(5) Member States should give effect to the provisions of this
Directive without discrimination on the basis of sex, race,
colour, ethnic or social origin, genetic characteristics, language,
religion or beliefs, political or other opinions, membership of a
national minority, fortune, birth, disabilities, age or sexual orien­
tation.
▼B
2003L0109 — EN — 20.05.2011 — 001.001 — 2
(1) OJ C 240 E, 28.8.2001, p. 79.
(2) OJ C 284 E, 21.11.2002, p. 102.
(3) OJ C 36, 8.2.2002, p. 59.
(4) OJ C 19, 22.1.2002, p. 18.
(6) The main criterion for acquiring the status of long-term resident
should be the duration of residence in the territory of a Member
State. Residence should be both legal and continuous in order to
show that the person has put down roots in the country. Provision
should be made for a degree of flexibility so that account can be
taken of circumstances in which a person might have to leave the
territory on a temporary basis.
(7) To acquire long-term resident status, third-country nationals
should prove that they have adequate resources and sickness
insurance, to avoid becoming a burden for the Member State.
Member States, when making an assessment of the possession
of stable and regular resources may take into account factors such
as contributions to the pension system and fulfilment of tax obli­
gations.
(8) Moreover, third-country nationals who wish to acquire and
maintain long-term resident status should not constitute a threat
to public policy or public security. The notion of public policy
may cover a conviction for committing a serious crime.
(9) Economic considerations should not be a ground for refusing to
grant long-term resident status and shall not be considered as
interfering with the relevant conditions.
(10) A set of rules governing the procedures for the examination of
application for long-term resident status should be laid down.
Those procedures should be effective and manageable, taking
account of the normal workload of the Member States' administrations,
as well as being transparent and fair, in order to offer
appropriate legal certainty to those concerned. They should not
constitute a means of hindering the exercise of the right of
residence.
(11) The acquisition of long-term resident status should be certified by
residence permits enabling those concerned to prove their legal
status easily and immediately. Such residence permits should also
satisfy high-level technical standards, notably as regards
protection against falsification and counterfeiting, in order to
avoid abuses in the Member State in which the status is
acquired and in Member States in which the right of residence
is exercised.
(12) In order to constitute a genuine instrument for the integration of
long-term residents into society in which they live, long-term
residents should enjoy equality of treatment with citizens of the
Member State in a wide range of economic and social matters,
under the relevant conditions defined by this Directive.
(13) With regard to social assistance, the possibility of limiting the
benefits for long-term residents to core benefits is to be
understood in the sense that this notion covers at least
minimum income support, assistance in case of illness,
pregnancy, parental assistance and long-term care. The modalities
for granting such benefits should be determined by national law.
▼B
2003L0109 — EN — 20.05.2011 — 001.001 — 3
(14) The Member States should remain subject to the obligation to
afford access for minors to the educational system under
conditions similar to those laid down for their nationals.
(15) The notion of study grants in the field of vocational training does
not cover measures which are financed under social assistance
schemes. Moreover, access to study grants may be dependent on
the fact that the person who applies for such grants fulfils on
his/her own the conditions for acquiring long-term resident status.
As regards the issuing of study grants, Member States may take
into account the fact that Union citizens may benefit from this
same advantage in the country of origin.
(16) Long-term residents should enjoy reinforced protection against
expulsion. This protection is based on the criteria determined
by the decisions of the European Court of Human Rights. In
order to ensure protection against expulsion Member States
should provide for effective legal redress.
(17) Harmonisation of the terms for acquisition of long-term resident
status promotes mutual confidence between Member States.
Certain Member States issue permits with a permanent or
unlimited validity on conditions that are more favourable than
those provided for by this Directive. The possibility of
applying more favourable national provisions is not excluded
by the Treaty. However, for the purposes of this Directive, it
should be provided that permits issued on more favourable
terms do not confer the right to reside in other Member States.
(18) Establishing the conditions subject to which the right to reside in
another Member State may be acquired by third-country nationals
who are long-term residents should contribute to the effective
attainment of an internal market as an area in which the free
movement of persons is ensured. It could also constitute a
major factor of mobility, notably on the Union's employment
market.
(19) Provision should be made that the right of residence in another
Member State may be exercised in order to work in an employed
or self-employed capacity, to study or even to settle without
exercising any form of economic activity.
(20) Family members should also be able to settle in another Member
State with a long-term resident in order to preserve family unity
and to avoid hindering the exercise of the long-term resident's
right of residence. With regard to the family members who may
be authorised to accompany or to join the long-term residents,
Member States should pay special attention to the situation of
disabled adult children and of first-degree relatives in the direct
ascending line who are dependent on them.
(21) The Member State in which a long-term resident intends to
exercise his/her right of residence should be able to check that
the person concerned meets the conditions for residing in its
territory. It should also be able to check that the person
concerned does not constitute a threat to public policy, public
security or public health.
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2003L0109 — EN — 20.05.2011 — 001.001 — 4
(22) To avoid rendering the right of residence nugatory, long-term
residents should enjoy in the second Member State the same
treatment, under the conditions defined by this Directive, they
enjoy in the Member State in which they acquired the status.
The granting of benefits under social assistance is without
prejudice to the possibility for the Member States to withdraw
the residence permit if the person concerned no longer fulfils the
requirements set by this Directive.
(23) Third-country nationals should be granted the possibility of
acquiring long-term resident status in the Member State where
they have moved and have decided to settle under comparable
conditions to those required for its acquisition in the first Member
State.
(24) Since the objectives of the proposed action, namely the determination
of terms for granting and withdrawing long-term
resident status and the rights pertaining thereto and terms for
the exercise of rights of residence by long-term residents in
other Member States, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale and
effects of the action, be better achieved by the Community, 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 Directive does not go beyond what is necessary to
achieve those objectives.
(25) In accordance with Articles 1 and 2 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, and without prejudice to Article 4 of the
said Protocol, these Member States are not participating in the
adoption of this Directive and are not bound by or subject to its
application.
(26) 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 does not take part in the adoption of this Directive,
and is not bound by it or subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
This Directive determines:
(a) the terms for conferring and withdrawing long-term resident status
granted by a Member State in relation to third-country nationals
legally residing in its territory, and the rights pertaining thereto; and
▼B
2003L0109 — EN — 20.05.2011 — 001.001 — 5
(b) the terms of residence in Member States other than the one which
conferred long-term status on them for third-country nationals
enjoying that status.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘third-country national’ means any person who is not a citizen of
the Union within the meaning of Article 17(1) of the Treaty;
(b) ‘long-term resident’ means any third-country national who has longterm
resident status as provided for under Articles 4 to 7;
(c) ‘first Member State’ means the Member State which for the first
time granted long-term resident status to a third-country national;
(d) ‘second Member State’ means any Member State other than the one
which for the first time granted long-term resident status to a thirdcountry
national and in which that long-term resident exercises the
right of residence;
(e) ‘family members’ means the third-country nationals who reside in
the Member State concerned in accordance with Council Directive
2003/86/EC of 22 September 2003 on the right to family reunification
(1);
▼M1
(f) ‘international protection’ means international protection as defined
in Article 2(a) of Council Directive 2004/83/EC of 29 April 2004
on minimum standards for the qualification and status of thirdcountry
nationals or stateless persons as refugees or as persons
who otherwise need international protection and the content of the
protection granted (2);
▼B
(g) ‘long-term resident's EC residence permit’ means a residence permit
issued by the Member State concerned upon the acquisition of longterm
resident status.
Article 3
Scope
1. This Directive applies to third-country nationals residing legally in
the territory of a Member State.
2. This Directive does not apply to third-country nationals who:
(a) reside in order to pursue studies or vocational training;
▼B
2003L0109 — EN — 20.05.2011 — 001.001 — 6
(1) OJ L 251, 3.10.2003, p. 12.
(2) OJ L 304, 30.9.2004, p. 12.
(b) are authorised to reside in a Member State on the basis of temporary
protection or have applied for authorisation to reside on that basis
and are awaiting a decision on their status;
▼M1
(c) are authorised to reside in a Member State on the basis of a form of
protection other than international protection or have applied for
authorisation to reside on that basis and are awaiting a decision
on their status;
(d) have applied for international protection and whose application has
not yet given rise to a final decision;
▼B
(e) reside solely on temporary grounds such as au pair or seasonal
worker, or as workers posted by a service provider for the
purposes of cross-border provision of services, or as cross-border
providers of services or in cases where their residence permit has
been formally limited;
(f) enjoy a legal status governed by the Vienna Convention on
Diplomatic Relations of 1961, the Vienna Convention on
Consular Relations of 1963, the Convention of 1969 on Special
Missions or the Vienna Convention on the Representation of
States in their Relations with International Organisations of a
Universal Character of 1975.
3. This Directive shall apply without prejudice to more favourable
provisions of:
(a) bilateral and multilateral agreements between the Community or the
Community and its Member States, on the one hand, and third
countries, on the other;
(b) bilateral agreements already concluded between a Member State and
a third country before the date of entry into force of this Directive;
▼M1
(c) the European Convention on Establishment of 13 December 1955,
the European Social Charter of 18 October 1961, the amended
European Social Charter of 3 May 1987, the European Convention
on the Legal Status of Migrant Workers of 24 November 1977,
paragraph 11 of the Schedule to the Convention Relating to the
Status of Refugees of 28 July 1951, as amended by the Protocol
signed in New York on 31 January 1967, and the European
Agreement on Transfer of Responsibility for Refugees of
16 October 1980.
▼B
CHAPTER II
LONG-TERM RESIDENT STATUS IN A MEMBER STATE
Article 4
Duration of residence
1. Member States shall grant long-term resident status to thirdcountry
nationals who have resided legally and continuously within
its territory for five years immediately prior to the submission of the
relevant application.
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2003L0109 — EN — 20.05.2011 — 001.001 — 7
1a. Member States shall not grant long-term resident status on the
basis of international protection in the event of the revocation of, ending
of or refusal to renew international protection as laid down in Articles
14(3) and 19(3) of Directive 2004/83/EC.
▼B
2. Periods of residence for the reasons referred to in Article 3(2)(e)
and (f) shall not be taken into account for the purposes of calculating
the period referred to in paragraph 1.
Regarding the cases covered in Article 3(2)(a), where the third-country
national concerned has acquired a title of residence which will enable
him/her to be granted long-term resident status, only half of the periods
of residence for study purposes or vocational training may be taken into
account in the calculation of the period referred to in paragraph 1.
▼M1
Regarding persons to whom international protection has been granted, at
least half of the period between the date of the lodging of the application
for international protection on the basis of which that international
protection was granted and the date of the grant of the
residence permit referred to in Article 24 of Directive 2004/83/EC, or
the whole of that period if it exceeds 18 months, shall be taken into
account in the calculation of the period referred to in paragraph 1.
▼B
3. Periods of absence from the territory of the Member State
concerned shall not interrupt the period referred to in paragraph 1 and
shall be taken into account for its calculation where they are shorter
than six consecutive months and do not exceed in total 10 months
within the period referred to in paragraph 1.
In cases of specific or exceptional reasons of a temporary nature and in
accordance with their national law, Member States may accept that a
longer period of absence than that which is referred to in the first
subparagraph shall not interrupt the period referred to in paragraph 1.
In such cases Member States shall not take into account the relevant
period of absence in the calculation of the period referred to in
paragraph 1.
By way of derogation from the second subparagraph, Member States
may take into account in the calculation of the total period referred to in
paragraph 1 periods of absence relating to secondment for employment
purposes, including the provision of cross-border services.
Article 5
Conditions for acquiring long-term resident status
1. Member States shall require third-country nationals to provide
evidence that they have, for themselves and for dependent family
members:
(a) stable and regular resources which are sufficient to maintain
himself/herself and the members of his/her family, without
recourse to the social assistance system of the Member State
concerned. Member States shall evaluate these resources by
reference to their nature and regularity and may take into account
the level of minimum wages and pensions prior to the application
for long-term resident status;
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2003L0109 — EN — 20.05.2011 — 001.001 — 8
(b) sickness insurance in respect of all risks normally covered for
his/her own nationals in the Member State concerned.
2. Member States may require third-country nationals to comply with
integration conditions, in accordance with national law.
Article 6
Public policy and public security
1. Member States may refuse to grant long-term resident status on
grounds of public policy or public security.
When taking the relevant decision, the Member State shall consider the
severity or type of offence against public policy or public security, or
the danger that emanates from the person concerned, while also having
proper regard to the duration of residence and to the existence of links
with the country of residence.
2. The refusal referred to in paragraph 1 shall not be founded on
economic considerations.
Article 7
Acquisition of long-term resident status
1. To acquire long-term resident status, the third-country national
concerned shall lodge an application with the competent authorities of
the Member State in which he/she resides. The application shall be
accompanied by documentary evidence to be determined by national
law that he/she meets the conditions set out in Articles 4 and 5 as
well as, if required, by a valid travel document or its certified copy.
The evidence referred to in the first subparagraph may also include
documentation with regard to appropriate accommodation.
2. The competent national authorities shall give the applicant written
notification of the decision as soon as possible and in any event no later
than six months from the date on which the application was lodged.
Any such decision shall be notified to the third-country national
concerned in accordance with the notification procedures under the
relevant national legislation.
In exceptional circumstances linked to the complexity of the examination
of the application, the time limit referred to in the first
subparagraph may be extended.
In addition, the person concerned shall be informed about his/her rights
and obligations under this Directive.
Any consequences of no decision being taken by the end of the period
provided for in this provision shall be determined by national legislation
of the relevant Member State.
3. If the conditions provided for by Articles 4 and 5 are met, and the
person does not represent a threat within the meaning of Article 6, the
Member State concerned shall grant the third-country national
concerned long-term resident status.
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2003L0109 — EN — 20.05.2011 — 001.001 — 9
Article 8
Long-term resident's EC residence permit
1. The status as long-term resident shall be permanent, subject to
Article 9.
2. Member States shall issue a long-term resident's EC residence
permit to long-term residents. The permit shall be valid at least for
five years; it shall, upon application if required, be automatically
renewable on expiry.
3. A long-term resident's EC residence permit may be issued in the
form of a sticker or of a separate document. It shall be issued in
accordance with the rules and standard model as set out in Council
Regulation (EC) No 1030/2002 of 13 June 2002 laying down a
uniform format for residence permits for third-country nationals (1).
Under the heading ‘type of permit’, the Member States shall enter
‘long-term resident — EC’.
▼M1
4. Where a Member State issues a long-term resident’s EU residence
permit to a third-country national to whom it granted international
protection, it shall enter the following remark in that long-term
resident’s EU residence permit, under the heading ‘Remarks’: ‘International
protection granted by [name of the Member State] on [date]’.
5. Where a long-term resident’s EU residence permit is issued by a
second Member State to a third-country national who already has a
long-term resident’s EU residence permit issued by another Member
State which contains the remark referred to in paragraph 4, the
second Member State shall enter the same remark in the long-term
resident’s EU residence permit.
Before the second Member State enters the remark referred to in
paragraph 4, it shall request the Member State mentioned in that
remark to provide information as to whether the long-term resident is
still a beneficiary of international protection. The Member State
mentioned in the remark shall reply no later than 1 month after
receiving the request for information. Where international protection
has been withdrawn by a final decision, the second Member State
shall not enter that remark.
6. Where, in accordance with the relevant international instruments
or national law, responsibility for the international protection of the
long-term resident was transferred to the second Member State after
the long-term resident’s EU residence permit referred to in paragraph
5 was issued, the second Member State shall amend accordingly the
remark referred to in paragraph 4 no later than 3 months after the
transfer.
▼B
Article 9
Withdrawal or loss of status
1. Long-term residents shall no longer be entitled to maintain longterm
resident status in the following cases:
(a) detection of fraudulent acquisition of long-term resident status;
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2003L0109 — EN — 20.05.2011 — 001.001 — 10
(1) OJ L 157, 15.6.2002, p. 1.
(b) adoption of an expulsion measure under the conditions provided for
in Article 12;
(c) in the event of absence from the territory of the Community for a
period of 12 consecutive months.
2. By way of derogation from paragraph 1(c), Member States may
provide that absences exceeding 12 consecutive months or for specific
or exceptional reasons shall not entail withdrawal or loss of status.
3. Member States may provide that the long-term resident shall no
longer be entitled to maintain his/her long-term resident status in cases
where he/she constitutes a threat to public policy, in consideration of the
seriousness of the offences he/she committed, but such threat is not a
reason for expulsion within the meaning of Article 12.
▼M1
3a. Member States may withdraw the long-term resident status in the
event of the revocation of, ending of or refusal to renew international
protection as laid down in Articles 14(3) and 19(3) of Directive
2004/83/EC if the long-term resident status was obtained on the basis
of international protection.
▼B
4. The long-term resident who has resided in another Member State
in accordance with Chapter III shall no longer be entitled to maintain
his/her long-term resident status acquired in the first Member State
when such a status is granted in another Member State pursuant to
Article 23.
In any case after six years of absence from the territory of the Member
State that granted long-term resident status the person concerned shall
no longer be entitled to maintain his/her long term resident status in the
said Member State.
By way of derogation from the second subparagraph the Member State
concerned may provide that for specific reasons the long-term resident
shall maintain his/her status in the said Member State in case of
absences for a period exceeding six years.
5. With regard to the cases referred to in paragraph 1(c) and in
paragraph 4, Member States who have granted the status shall
provide for a facilitated procedure for the re-acquisition of long-term
resident status.
The said procedure shall apply in particular to the cases of persons that
have resided in a second Member State on grounds of pursuit of studies.
The conditions and the procedure for the re-acquisition of long-term
resident status shall be determined by national law.
6. The expiry of a long-term resident's EC residence permit shall in
no case entail withdrawal or loss of long-term resident status.
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2003L0109 — EN — 20.05.2011 — 001.001 — 11
7. Where the withdrawal or loss of long-term resident status does not
lead to removal, the Member State shall authorise the person concerned
to remain in its territory if he/she fulfils the conditions provided for in
its national legislation and/or if he/she does not constitute a threat to
public policy or public security.
Article 10
Procedural guarantees
1. Reasons shall be given for any decision rejecting an application
for long-term resident status or withdrawing that status. Any such
decision shall be notified to the third-country national concerned in
accordance with the notification procedures under the relevant
national legislation. The notification shall specify the redress procedures
available and the time within which he/she may act.
2. Where an application for long-term resident status is rejected or
that status is withdrawn or lost or the residence permit is not renewed,
the person concerned shall have the right to mount a legal challenge in
the Member State concerned.
Article 11
Equal treatment
1. Long-term residents shall enjoy equal treatment with nationals as
regards:
(a) access to employment and self-employed activity, provided such
activities do not entail even occasional involvement in the
exercise of public authority, and conditions of employment and
working conditions, including conditions regarding dismissal and
remuneration;
(b) education and vocational training, including study grants in
accordance with national law;
(c) recognition of professional diplomas, certificates and other qualifications,
in accordance with the relevant national procedures;
(d) social security, social assistance and social protection as defined by
national law;
(e) tax benefits;
(f) access to goods and services and the supply of goods and services
made available to the public and to procedures for obtaining
housing;
(g) freedom of association and affiliation and membership of an organisation
representing workers or employers or of any organisation
whose members are engaged in a specific occupation, including
the benefits conferred by such organisations, without prejudice to
the national provisions on public policy and public security;
(h) free access to the entire territory of the Member State concerned,
within the limits provided for by the national legislation for reasons
of security.
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2003L0109 — EN — 20.05.2011 — 001.001 — 12
2. With respect to the provisions of paragraph 1, points (b), (d), (e),
(f) and (g), the Member State concerned may restrict equal treatment to
cases where the registered or usual place of residence of the long-term
resident, or that of family members for whom he/she claims benefits,
lies within the territory of the Member State concerned.
3. Member States may restrict equal treatment with nationals in the
following cases:
(a) Member States may retain restrictions to access to employment or
self-employed activities in cases where, in accordance with existing
national or Community legislation, these activities are reserved to
nationals, EU or EEA citizens;
(b) Member States may require proof of appropriate language proficiency
for access to education and training. Access to university
may be subject to the fulfilment of specific educational
prerequisites.
4. Member States may limit equal treatment in respect of social
assistance and social protection to core benefits.
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4a. As far as the Member State which granted international
protection is concerned, paragraphs 3 and 4 shall be without prejudice
to Directive 2004/83/EC.
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5. Member States may decide to grant access to additional benefits in
the areas referred to in paragraph 1.
Member States may also decide to grant equal treatment with regard to
areas not covered in paragraph 1.
Article 12
Protection against expulsion
1. Member States may take a decision to expel a long-term resident
solely where he/she constitutes an actual and sufficiently serious threat
to public policy or public security.
2. The decision referred to in paragraph 1 shall not be founded on
economic considerations.
3. Before taking a decision to expel a long-term resident, Member
States shall have regard to the following factors:
(a) the duration of residence in their territory;
(b) the age of the person concerned;
(c) the consequences for the person concerned and family members;
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2003L0109 — EN — 20.05.2011 — 001.001 — 13
(d) links with the country of residence or the absence of links with the
country of origin.
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3a. Where a Member State decides to expel a long-term resident
whose long-term resident’s EU residence permit contains the remark
referred to in Article 8(4), it shall request the Member State
mentioned in that remark to confirm whether the person concerned is
still a beneficiary of international protection in that Member State. The
Member State mentioned in the remark shall reply no later than 1 month
after receiving the request for information.
3b. If the long-term resident is still a beneficiary of international
protection in the Member State mentioned in the remark, that person
shall be expelled to that Member State, which shall, without prejudice to
the applicable Union or national law and to the principle of family
unity, immediately readmit, without formalities, that beneficiary and
his/her family members.
3c. By way of derogation from paragraph 3b, the Member State
which adopted the expulsion decision shall retain the right to remove,
in accordance with its international obligations, the long-term resident to
a country other than the Member State which granted international
protection where that person fulfils the conditions specified in
Article 21(2) of Directive 2004/83/EC.
▼B
4. Where an expulsion decision has been adopted, a judicial redress
procedure shall be available to the long-term resident in the Member
State concerned.
5. Legal aid shall be given to long-term residents lacking adequate
resources, on the same terms as apply to nationals of the State where
they reside.
▼M1
6. This Article shall be without prejudice to Article 21(1) of
Directive 2004/83/EC.
▼B
Article 13
More favourable national provisions
Member States may issue residence permits of permanent or unlimited
validity on terms that are more favourable than those laid down by this
Directive. Such residence permits shall not confer the right of residence
in the other Member States as provided by Chapter III of this Directive.
CHAPTER III
RESIDENCE IN THE OTHER MEMBER STATES
Article 14
Principle
1. A long-term resident shall acquire the right to reside in the
territory of Member States other than the one which granted him/her
the long-term residence status, for a period exceeding three months,
provided that the conditions set out in this chapter are met.
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2003L0109 — EN — 20.05.2011 — 001.001 — 14
2. A long-term resident may reside in a second Member State on the
following grounds:
(a) exercise of an economic activity in an employed or self-employed
capacity;
(b) pursuit of studies or vocational training;
(c) other purposes.
3. In cases of an economic activity in an employed or self-employed
capacity referred to in paragraph 2(a), Member States may examine the
situation of their labour market and apply their national procedures
regarding the requirements for, respectively, filling a vacancy, or for
exercising such activities.
For reasons of labour market policy, Member States may give preference
to Union citizens, to third-country nationals, when provided
for by Community legislation, as well as to third-country nationals
who reside legally and receive unemployment benefits in the Member
State concerned.
4. By way of derogation from the provisions of paragraph 1, Member
States may limit the total number of persons entitled to be granted right
of residence, provided that such limitations are already set out for the
admission of third-country nationals in the existing legislation at the
time of the adoption of this Directive.
5. This chapter does not concern the residence of long-term residents
in the territory of the Member States:
(a) as employed workers posted by a service provider for the purposes
of cross-border provision of services;
(b) as providers of cross-border services.
Member States may decide, in accordance with national law, the
conditions under which long-term residents who wish to move to a
second Member State with a view to exercising an economic activity
as seasonal workers may reside in that Member State. Cross-border
workers may also be subject to specific provisions of national law.
6. This Chapter is without prejudice to the relevant Community legislation
on social security with regard to third-country nationals.
Article 15
Conditions for residence in a second Member State
1. As soon as possible and no later than three months after entering
the territory of the second Member State, the long-term resident shall
apply to the competent authorities of that Member State for a residence
permit.
Member States may accept that the long-term resident submits the
application for a residence permit to the competent authorities of the
second Member State while still residing in the territory of the first
Member State.
▼B
2003L0109 — EN — 20.05.2011 — 001.001 — 15
2. Member States may require the persons concerned to provide
evidence that they have:
(a) stable and regular resources which are sufficient to maintain themselves
and the members of their families, without recourse to the
social assistance of the Member State concerned. For each of the
categories referred to in Article 14(2), Member States shall evaluate
these resources by reference to their nature and regularity and may
take into account the level of minimum wages and pensions;
(b) sickness insurance covering all risks in the second Member State
normally covered for its own nationals in the Member State
concerned.
3. Member States may require third-country nationals to comply with
integration measures, in accordance with national law.
This condition shall not apply where the third-country nationals
concerned have been required to comply with integration conditions
in order to be granted long-term resident status, in accordance with
the provisions of Article 5(2).
Without prejudice to the second subparagraph, the persons concerned
may be required to attend language courses.
4. The application shall be accompanied by documentary evidence,
to be determined by national law, that the persons concerned meets the
relevant conditions, as well as by their long-term resident permit and a
valid travel document or their certified copies.
The evidence referred to in the first subparagraph may also include
documentation with regard to appropriate accommodation.
In particular:
(a) in case of exercise of an economic activity the second Member
State may require the persons concerned to provide evidence:
(i) if they are in an employed capacity, that they have an
employment contract, a statement by the employer that they
are hired or a proposal for an employment contract, under the
conditions provided for by national legislation. Member States
shall determine which of the said forms of evidence is required;
(ii) if they are in a self-employed capacity, that they have the
appropriate funds which are needed, in accordance with
national law, to exercise an economic activity in such
capacity, presenting the necessary documents and permits;
(b) in case of study or vocational training the second Member State
may require the persons concerned to provide evidence of enrolment
in an accredited establishment in order to pursue studies or vocational
training.
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2003L0109 — EN — 20.05.2011 — 001.001 — 16
Article 16
Family members
1. When the long-term resident exercises his/her right of residence in
a second Member State and when the family was already constituted in
the first Member State, the members of his/her family, who fulfil the
conditions referred to in Article 4(1) of Directive 2003/86/EC shall be
authorised to accompany or to join the long-term resident.
2. When the long-term resident exercises his/her right of residence in
a second Member State and when the family was already constituted in
the first Member State, the members of his/her family, other than those
referred to in Article 4(1) of Directive 2003/86/EC may be authorised to
accompany or to join the long-term resident.
3. With respect to the submission of the application for a residence
permit, the provisions of Article 15(1) apply.
4. The second Member State may require the family members
concerned to present with their application for a residence permit:
(a) their long-term resident's EC residence permit or residence permit
and a valid travel document or their certified copies;
(b) evidence that they have resided as members of the family of the
long-term resident in the first Member State;
(c) evidence that they have stable and regular resources which are
sufficient to maintain themselves without recourse to the social
assistance of the Member State concerned or that the long-term
resident has such resources and insurance for them, as well as
sickness insurance covering all risks in the second Member State.
Member States shall evaluate these resources by reference to their
nature and regularity and may take into account the level of
minimum wages and pensions.
5. Where the family was not already constituted in the first Member
State, Directive 2003/86/EC shall apply.
Article 17
Public policy and public security
1. Member States may refuse applications for residence from longterm
residents or their family members where the person concerned
constitutes a threat to public policy or public security.
When taking the relevant decision, the Member State shall consider the
severity or type of offence against public policy or public security
committed by the long-term resident or his/her family member(s), or
the danger that emanates from the person concerned.
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2003L0109 — EN — 20.05.2011 — 001.001 — 17
2. The decision referred to in paragraph 1 shall not be based on
economic considerations.
Article 18
Public health
1. Member States may refuse applications for residence from longterm
residents or their family members where the person concerned
constitutes a threat to public health.
2. The only diseases that may justify a refusal to allow entry or the
right of residence in the territory of the second Member State shall be
the diseases as defined by the relevant applicable instruments of the
World Health Organisation's and such other infectious or contagious
parasite-based diseases as are the subject of protective provisions in
relation to nationals in the host country. Member States shall not
introduce new more restrictive provisions or practices.
3. Diseases contracted after the first residence permit was issued in
the second Member State shall not justify a refusal to renew the permit
or expulsion from the territory.
4. A Member State may require a medical examination, for persons
to whom this Directive applies, in order to certify that they do not suffer
from any of the diseases referred to in paragraph 2. Such medical
examinations, which may be free of charge, shall not be performed
on a systematic basis.
Article 19
Examination of applications and issue of a residence permit
1. The competent national authorities shall process applications
within four months from the date that these have been lodged.
If an application is not accompanied by the documentary evidence listed
in Articles 15 and 16, or in exceptional circumstances linked with the
complexity of the examination of the application, the time limit referred
to in the first subparagraph may be extended for a period not exceeding
three months. In such cases the competent national authorities shall
inform the applicant thereof.
2. If the conditions provided for in Articles 14, 15 and 16 are met,
then, subject to the provisions relating to public policy, public security
and public health in Articles 17 and 18, the second Member State shall
issue the long-term resident with a renewable residence permit. This
residence permit shall, upon application, if required, be renewable on
expiry. The second Member State shall inform the first Member State of
its decision.
3. The second Member State shall issue members of the long-term
resident's family with renewable residence permits valid for the same
period as the permit issued to the long-term resident.
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2003L0109 — EN — 20.05.2011 — 001.001 — 18
Article 19a
Amendments of long-term resident’s EU residence permits
1. Where a long-term resident’s EU residence permit contains the
remark referred to in Article 8(4), and where, in accordance with the
relevant international instruments or national law, responsibility for the
international protection of the long-term resident is transferred to a
second Member State before that Member State issues the long-term
resident’s EU residence permit referred to in Article 8(5), the second
Member State shall ask the Member State which has issued the longterm
resident’s EU residence permit to amend that remark accordingly.
2. Where a long-term resident is granted international protection in
the second Member State before that Member State issued the long-term
resident’s EU residence permit referred to in Article 8(5), that Member
State shall ask the Member State which has issued the long-term
resident’s EU residence permit to amend it in order to enter the
remark referred to in Article 8(4).
3. Following the request referred to in paragraphs 1 and 2, the
Member State which has issued the long-term resident’s EU residence
permit shall issue the amended long-term resident’s EU residence permit
no later than 3 months after receiving the request from the second
Member State.
▼B
Article 20
Procedural guarantees
1. Reasons shall be given for any decision rejecting an application
for a residence permit. It shall be notified to the third-country national
concerned in accordance with the notification procedures under the
relevant national legislation. The notification shall specify the possible
redress procedures available and the time limit for taking action.
Any consequences of no decision being taken by the end of the period
referred to in Article 19(1) shall be determined by the national legislation
of the relevant Member State.
2. Where an application for a residence permit is rejected, or the
permit is not renewed or is withdrawn, the person concerned shall
have the right to mount a legal challenge in the Member State
concerned.
Article 21
Treatment granted in the second Member State
1. As soon as they have received the residence permit provided for
by Article 19 in the second Member State, long-term residents shall in
that Member State enjoy equal treatment in the areas and under the
conditions referred to in Article 11.
2. Long-term residents shall have access to the labour market in
accordance with the provisions of paragraph 1.
▼M1
2003L0109 — EN — 20.05.2011 — 001.001 — 19
Member States may provide that the persons referred to in
Article 14(2)(a) shall have restricted access to employed activities
different than those for which they have been granted their residence
permit under the conditions set by national legislation for a period not
exceeding 12 months.
Member States may decide in accordance with national law the
conditions under which the persons referred to in Article 14(2)(b) or
(c) may have access to an employed or self-employed activity.
3. As soon as they have received the residence permit provided for
by Article 19 in the second Member State, members of the family of the
long-term resident shall in that Member State enjoy the rights listed in
Article 14 of Directive 2003/86/EC.
Article 22
Withdrawal of residence permit and obligation to readmit
1. Until the third-country national has obtained long-term resident
status, the second Member State may decide to refuse to renew or to
withdraw the resident permit and to oblige the person concerned and
his/her family members, in accordance with the procedures provided for
by national law, including removal procedures, to leave its territory in
the following cases:
(a) on grounds of public policy or public security as defined in
Article 17;
(b) where the conditions provided for in Articles 14, 15 and 16 are no
longer met;
(c) where the third-country national is not lawfully residing in the
Member State concerned.
2. If the second Member State adopts one of the measures referred to
in paragraph 1, the first Member State shall immediately readmit
without formalities the long-term resident and his/her family members.
The second Member State shall notify the first Member State of its
decision.
3. Until the third-country national has obtained long-term resident
status and without prejudice to the obligation to readmit referred to in
paragraph 2, the second Member State may adopt a decision to remove
the third-country national from the territory of the Union, in accordance
with and under the guarantees of Article 12, on serious grounds of
public policy or public security.
In such cases, when adopting the said decision the second Member State
shall consult the first Member State.
When the second Member State adopts a decision to remove the thirdcountry
national concerned, it shall take all the appropriate measures to
effectively implement it. In such cases the second Member State shall
provide to the first Member State appropriate information with respect
to the implementation of the removal decision.
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2003L0109 — EN — 20.05.2011 — 001.001 — 20
3a. Unless, in the meantime, the international protection has been
withdrawn or the person falls within one of the categories specified
in Article 21(2) of Directive 2004/83/EC, paragraph 3 of this Article
shall not apply to third-country nationals whose long-term resident’s EU
residence permit issued by the first Member State contains the remark
referred to in Article 8(4) of this Directive.
This paragraph shall be without prejudice to Article 21(1) of Directive
2004/83/EC.
▼B
4. Removal decisions may not be accompanied by a permanent ban
on residence in the cases referred to in paragraph 1(b) and (c).
5. The obligation to readmit referred to in paragraph 2 shall be
without prejudice to the possibility of the long-term resident and
his/her family members moving to a third Member State.
Article 23
Acquisition of long-term resident status in the second Member State
1. Upon application, the second Member State shall grant long-term
residents the status provided for by Article 7, subject to the provisions
of Articles 3, 4, 5 and 6. The second Member State shall notify its
decision to the first Member State.
2. The procedure laid down in Article 7 shall apply to the presentation
and examination of applications for long-term resident status in
the second Member State. Article 8 shall apply for the issuance of the
residence permit. Where the application is rejected, the procedural guarantees
provided for by Article 10 shall apply.
CHAPTER IV
FINAL PROVISIONS
Article 24
Report and rendez-vous clause
Periodically, and for the first time no later than 23 January 2011, the
Commission shall report to the European Parliament and to the Council
on the application of this Directive in the Member States and shall
propose such amendments as may be necessary. These proposals for
amendments shall be made by way of priority in relation to Articles 4,
5, 9, 11 and to Chapter III.
Article 25
Contact points
▼M1
Member States shall appoint contact points who will be responsible for
receiving and transmitting the information and documentation referred
to in Articles 8, 12, 19, 19a, 22 and 23.
▼B
Member States shall provide appropriate cooperation in the exchange of
the information and documentation referred to in the first paragraph.
▼M1
2003L0109 — EN — 20.05.2011 — 001.001 — 21
Article 26
Transposition
Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by 23 January
2006 at the latest. 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.
Article 27
Entry into force
This Directive shall enter into force on the day of its publication in the
Official Journal of the European Union.
Article 28
Addressees
This Directive is addressed to the Member States in accordance with the
Treaty establishing the European Community.
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2003L0109 — EN — 20.05.2011 — 001.001 — 22
Volume I - 37
IV. Forced Migration
A. Asylum
1. Council Regulation (EC) No 343/2003 of 18 February 2003
establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application
lodged in one of the Member States by a third-country national
2. Council Directive 2003/9/EC of 27 January 2003 laying down
minimum standards for the reception of asylum seekers
3. Council Directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise
need international protection and the content of the protection
granted
4. Council Directive 2005/85/EC of 1 December 2005 on minimum
standards on procedures in Member States for granting and
withdrawing refugee status
5. Regulation (EU) No 439/2010 of the European Parliament and of
the Council of 19 May 2010 establishing a European Asylum
Support Office
B. Temporary Protection
1. Council Directive 2001/55/EC of 20 July 2001 on minimum
standards for giving temporary protection in the event of a mass
influx of displaced persons and on measures promoting a balance
of efforts between Member States in receiving such persons
and bearing the consequences thereof
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC) No 343/2003
of 18 February 2003
establishing the criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a third-country national
(OJ L 50, 25.2.2003, p. 1)
Amended by:
Official Journal
No page date
►M1 Regulation (EC) No 1103/2008 of the European Parliament and of the
Council of 22 October 2008
L 304 80 14.11.2008
2003R0343 — EN — 04.12.2008 — 001.001 — 1
COUNCIL REGULATION (EC) No 343/2003
of 18 February 2003
establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application
lodged in one of the Member States by a third-country national
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 63, first paragraph, point (1)(a),
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the European Economic and Social
Committee (3),
Whereas:
(1) A common policy on asylum, including a Common European
Asylum System, is a constituent part of the European Union's
objective of progressively establishing an area of freedom,
security and justice open to those who, forced by circumstances,
legitimately seek protection in the Community.
(2) The European Council, at its special meeting in Tampere on 15
and 16 October 1999, agreed to work towards establishing a
Common European Asylum System, based on the full and
inclusive application of the Geneva Convention relating to the
Status of Refugees of 28 July 1951, as supplemented by the
New York Protocol of 31 January 1967, thus ensuring that
nobody is sent back to persecution, i.e. maintaining the
principle of non-refoulement. In this respect, and without
affecting the responsibility criteria laid down in this Regulation,
Member States, all respecting the principle of non-refoulement,
are considered as safe countries for third-country nationals.
(3) The Tampere conclusions also stated that this system should
include, in the short term, a clear and workable method for
determining the Member State responsible for the examination
of an asylum application.
(4) Such a method should be based on objective, fair criteria both for
the Member States and for the persons concerned. It should, in
particular, make it possible to determine rapidly the Member
State responsible, so as to guarantee effective access to the
procedures for determining refugee status and not to compromise
the objective of the rapid processing of asylum applications.
(5) As regards the introduction in successive phases of a common
European asylum system that should lead, in the longer term, to a
common procedure and a uniform status, valid throughout the
Union, for those granted asylum, it is appropriate at this stage,
while making the necessary improvements in the light of
experience, to confirm the principles underlying the Convention
determining the State responsible for examining applications for
asylum lodged in one of the Member States of the European
Communities (4), signed in Dublin on 15 June 1990 (hereinafter
▼B
2003R0343 — EN — 04.12.2008 — 001.001 — 2
(1) OJ C 304 E, 30.10.2001, p. 192.
(2) Opinion of 9 April 2002 (not yet published in the Official Journal).
(3) OJ C 125, 27.5.2002, p. 28.
(4) OJ C 254, 19.8.1997, p. 1.
referred to as the Dublin Convention), whose implementation has
stimulated the process of harmonising asylum policies.
(6) Family unity should be preserved in so far as this is compatible
with the other objectives pursued by establishing criteria and
mechanisms for determining the Member State responsible for
examining an asylum application.
(7) The processing together of the asylum applications of the
members of one family by a single Member State makes it
possible to ensure that the applications are examined thoroughly
and the decisions taken in respect of them are consistent. Member
States should be able to derogate from the responsibility criteria,
so as to make it possible to bring family members together where
this is necessary on humanitarian grounds.
(8) The progressive creation of an area without internal frontiers in
which free movement of persons is guaranteed in accordance with
the Treaty establishing the European Community and the establishment
of Community policies regarding the conditions of entry
and stay of third country nationals, including common efforts
towards the management of external borders, makes it
necessary to strike a balance between responsibility criteria in a
spirit of solidarity.
(9) The application of this Regulation can be facilitated, and its
effectiveness increased, by bilateral arrangements between
Member States for improving communications between
competent departments, reducing time limits for procedures or
simplifying the processing of requests to take charge or take
back, or establishing procedures for the performance of transfers.
(10) Continuity between the system for determining the Member State
responsible established by the Dublin Convention and the system
established by this Regulation should be ensured. Similarly,
consistency should be ensured between this Regulation and
Council Regulation (EC) No 2725/2000 of 11 December 2000
concerning the establishment of ‘Eurodac’ for the comparison of
fingerprints for the effective application of the Dublin
Convention (1).
(11) The operation of the Eurodac system, as established by Regulation
(EC) No 2725/2000 and in particular the implementation of
Articles 4 and 8 contained therein should facilitate the implementation
of this Regulation.
(12) With respect to the treatment of persons falling within the scope
of this Regulation, Member States are bound by obligations under
instruments of international law to which they are party.
(13) The measures necessary for the implementation of this Regulation
should be adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the procedures for
the exercise of implementing powers conferred on the
Commission (2).
(14) The application of the Regulation should be evaluated at regular
intervals.
(15) The Regulation observes the fundamental rights and principles
which are acknowledged in particular in the Charter of Fundamental
Rights of the European Union (3). In particular, it seeks to
ensure full observance of the right to asylum guaranteed by
Article 18.
▼B
2003R0343 — EN — 04.12.2008 — 001.001 — 3
(1) OJ L 316, 15.12.2000, p. 1.
(2) OJ L 184, 17.7.1999, p. 23.
(3) OJ C 364, 18.12.2000, p. 1.
(16) Since the objective of the proposed measure, namely the establishment
of criteria and mechanisms for determining the Member
State responsible for examining an asylum application lodged in
one of the Member States by a third-country national, cannot be
sufficiently achieved by the Member States and, given the scale
and effects, can therefore 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 Regulation does not go beyond what is necessary in
order to achieve that objective.
(17) 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 and Ireland gave notice, by
letters of 30 October 2001, of their wish to take part in the
adoption and application of this Regulation.
(18) 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 Regulation
and is not bound by it nor subject to its application.
(19) The Dublin Convention remains in force and continues to apply
between Denmark and the Member States that are bound by this
Regulation until such time an agreement allowing Denmark's
participation in the Regulation has been concluded,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT-MATTER AND DEFINITIONS
Article 1
This Regulation lays down the criteria and mechanisms for determining
the Member State responsible for examining an application for asylum
lodged in one of the Member States by a third-country national.
Article 2
For the purposes of this Regulation:
(a) ‘third-country national’ means anyone who is not a citizen of the
Union within the meaning of Article 17(1) of the Treaty establishing
the European Community;
(b) ‘Geneva Convention’ means the Convention of 28 July 1951
relating to the status of refugees, as amended by the New York
Protocol of 31 January 1967;
(c) ‘application for asylum’ means the application made by a thirdcountry
national which can be understood as a request for international
protection from a Member State, under the Geneva
Convention. Any application for international protection is
presumed to be an application for asylum, unless a third-country
national explicitly requests another kind of protection that can be
applied for separately;
(d) ‘applicant’ or ‘asylum seeker’ means a third country national who
has made an application for asylum in respect of which a final
decision has not yet been taken;
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2003R0343 — EN — 04.12.2008 — 001.001 — 4
(e) ‘examination of an asylum application’ means any examination of,
or decision or ruling concerning, an application for asylum by the
competent authorities in accordance with national law except for
procedures for determining the Member State responsible in
accordance with this Regulation;
(f) ‘withdrawal of the asylum application’ means the actions by which
the applicant for asylum terminates the procedures initiated by the
submission of his application for asylum, in accordance with
national law, either explicitly or tacitly;
(g) ‘refugee’ means any third-country national qualifying for the status
defined by the Geneva Convention and authorised to reside as such
on the territory of a Member State;
(h) ‘unaccompanied minor’ means unmarried persons below the age of
eighteen who arrive in the territory of the Member States unaccompanied
by an adult responsible for them whether by law or by
custom, and for as long as they are not effectively taken into the
care of such a person; it includes minors who are left unaccompanied
after they have entered the territory of the Member States;
(i) ‘family members’ means insofar as the family already existed in the
country of origin, the following members of the applicant's family
who are present in the territory of the Member States:
(i) the spouse of the asylum seeker or his or her unmarried partner
in a stable relationship, where the legislation or practice of the
Member State concerned treats unmarried couples in a way
comparable to married couples under its law relating to aliens;
(ii) the minor children of couples referred to in point (i) or of the
applicant, on condition that they are unmarried and dependent
and regardless of whether they were born in or out of wedlock
or adopted as defined under the national law;
(iii) the father, mother or guardian when the applicant or refugee is
a minor and unmarried;
(j) ‘residence document’ means any authorisation issued by the authorities
of a Member State authorising a third-country national to stay
in its territory, including the documents substantiating the authorisation
to remain in the territory under temporary protection
arrangements or until the circumstances preventing a removal
order from being carried out no longer apply, with the exception
of visas and residence authorisations issued during the period
required to determine the responsible Member State as established
in this Regulation or during examination of an application for
asylum or an application for a residence permit;
(k) ‘visa’ means the authorisation or decision of a Member State
required for transit or entry for an intended stay in that Member
State or in several Member States. The nature of the visa shall be
determined in accordance with the following definitions:
(i) ‘long-stay visa’ means the authorisation or decision of a
Member State required for entry for an intended stay in that
Member State of more than three months;
(ii) ‘short-stay visa’ means the authorisation or decision of a
Member State required for entry for an intended stay in that
State or in several Member States for a period whose total
duration does not exceed three months;
(iii) ‘transit visa’ means the authorisation or decision of a Member
State for entry for transit through the territory of that Member
State or several Member States, except for transit at an airport;
(iv) ‘airport transit visa’ means the authorisation or decision
allowing a third-country national specifically subject to this
requirement to pass through the transit zone of an airport,
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without gaining access to the national territory of the Member
State concerned, during a stopover or a transfer between two
sections of an international flight.
CHAPTER II
GENERAL PRINCIPLES
Article 3
1. Member States shall examine the application of any third-country
national who applies at the border or in their territory to any one of
them for asylum. The application shall be examined by a single Member
State, which shall be the one which the criteria set out in Chapter III
indicate is responsible.
2. By way of derogation from paragraph 1, each Member State may
examine an application for asylum lodged with it by a third-country
national, even if such examination is not its responsibility under the
criteria laid down in this Regulation. In such an event, that Member
State shall become the Member State responsible within the meaning of
this Regulation and shall assume the obligations associated with that
responsibility. Where appropriate, it shall inform the Member State
previously responsible, the Member State conducting a procedure for
determining the Member State responsible or the Member State which
has been requested to take charge of or take back the applicant.
3. Any Member State shall retain the right, pursuant to its national
laws, to send an asylum seeker to a third country, in compliance with
the provisions of the Geneva Convention.
4. The asylum seeker shall be informed in writing in a language that
he or she may reasonably be expected to understand regarding the
application of this Regulation, its time limits and its effects.
Article 4
1. The process of determining the Member State responsible under
this Regulation shall start as soon as an application for asylum is first
lodged with a Member State.
2. An application for asylum shall be deemed to have been lodged
once a form submitted by the applicant for asylum or a report prepared
by the authorities has reached the competent authorities of the Member
State concerned. Where an application is not made in writing, the time
elapsing between the statement of intention and the preparation of a
report should be as short as possible.
3. For the purposes of this Regulation, the situation of a minor who
is accompanying the asylum seeker and meets the definition of a family
member set out in Article 2, point (i), shall be indissociable from that of
his parent or guardian and shall be a matter for the Member State
responsible for examining the application for asylum of that parent or
guardian, even if the minor is not individually an asylum seeker. The
same treatment shall be applied to children born after the asylum seeker
arrives in the territory of the Member States, without the need to initiate
a new procedure for taking charge of them.
4. Where an application for asylum is lodged with the competent
authorities of a Member State by an applicant who is in the territory
of another Member State, the determination of the Member State
responsible shall be made by the Member State in whose territory the
applicant is present. The latter Member State shall be informed without
delay by the Member State which received the application and shall
then, for the purposes of this Regulation, be regarded as the Member
State with which the application for asylum was lodged.
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The applicant shall be informed in writing of this transfer and of the
date on which it took place.
5. An asylum seeker who is present in another Member State and
there lodges an application for asylum after withdrawing his application
during the process of determining the Member State responsible shall be
taken back, under the conditions laid down in Article 20, by the
Member State with which that application for asylum was lodged,
with a view to completing the process of determining the Member
State responsible for examining the application for asylum.
This obligation shall cease, if the asylum seeker has in the meantime left
the territories of the Member States for a period of at least three months
or has obtained a residence document from a Member State.
CHAPTER III
HIERARCHY OF CRITERIA
Article 5
1. The criteria for determining the Member State responsible shall be
applied in the order in which they are set out in this Chapter.
2. The Member State responsible in accordance with the criteria shall
be determined on the basis of the situation obtaining when the asylum
seeker first lodged his application with a Member State.
Article 6
Where the applicant for asylum is an unaccompanied minor, the
Member State responsible for examining the application shall be that
where a member of his or her family is legally present, provided that
this is in the best interest of the minor.
In the absence of a family member, the Member State responsible for
examining the application shall be that where the minor has lodged his
or her application for asylum.
Article 7
Where the asylum seeker has a family member, regardless of whether
the family was previously formed in the country of origin, who has been
allowed to reside as a refugee in a Member State, that Member State
shall be responsible for examining the application for asylum, provided
that the persons concerned so desire.
Article 8
If the asylum seeker has a family member in a Member State whose
application has not yet been the subject of a first decision regarding the
substance, that Member State shall be responsible for examining the
application for asylum, provided that the persons concerned so desire.
Article 9
1. Where the asylum seeker is in possession of a valid residence
document, the Member State which issued the document shall be
responsible for examining the application for asylum.
2. Where the asylum seeker is in possession of a valid visa, the
Member State which issued the visa shall be responsible for
examining the application for asylum, unless the visa was issued
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when acting for or on the written authorisation of another Member
State. In such a case, the latter Member State shall be responsible for
examining the application for asylum. Where a Member State first
consults the central authority of another Member State, in particular
for security reasons, the latter's reply to the consultation shall not
constitute written authorisation within the meaning of this provision.
3. Where the asylum seeker is in possession of more than one valid
residence document or visa issued by different Member States, the
responsibility for examining the application for asylum shall be
assumed by the Member States in the following order:
(a) the Member State which issued the residence document conferring
the right to the longest period of residency or, where the periods of
validity are identical, the Member State which issued the residence
document having the latest expiry date;
(b) the Member State which issued the visa having the latest expiry
date where the various visas are of the same type;
(c) where visas are of different kinds, the Member State which issued
the visa having the longest period of validity, or, where the periods
of validity are identical, the Member State which issued the visa
having the latest expiry date.
4. Where the asylum seeker is in possession only of one or more
residence documents which have expired less than two years previously
or one or more visas which have expired less than six months
previously and which enabled him actually to enter the territory of a
Member State, paragraphs 1, 2 and 3 shall apply for such time as the
applicant has not left the territories of the Member States.
Where the asylum seeker is in possession of one or more residence
documents which have expired more than two years previously or
one or more visas which have expired more than six months previously
and enabled him actually to enter the territory of a Member State and
where he has not left the territories of the Member States, the Member
State in which the application is lodged shall be responsible.
5. The fact that the residence document or visa was issued on the
basis of a false or assumed identity or on submission of forged, counterfeit
or invalid documents shall not prevent responsibility being
allocated to the Member State which issued it. However, the Member
State issuing the residence document or visa shall not be responsible if
it can establish that a fraud was committed after the document or visa
had been issued.
Article 10
1. Where it is established, on the basis of proof or circumstantial
evidence as described in the two lists mentioned in Article 18(3),
including the data referred to in Chapter III of Regulation (EC) No
2725/2000, that an asylum seeker has irregularly crossed the border
into a Member State by land, sea or air having come from a third
country, the Member State thus entered shall be responsible for
examining the application for asylum. This responsibility shall cease
12 months after the date on which the irregular border crossing took
place.
2. When a Member State cannot or can no longer be held responsible
in accordance with paragraph 1, and where it is established, on the basis
of proof or circumstantial evidence as described in the two lists
mentioned in Article 18(3), that the asylum seeker — who has
entered the territories of the Member States irregularly or whose circumstances
of entry cannot be established — at the time of lodging the
application has been previously living for a continuous period of at least
five months in a Member State, that Member State shall be responsible
for examining the application for asylum.
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If the applicant has been living for periods of time of at least five
months in several Member States, the Member State where this has
been most recently the case shall be responsible for examining the
application.
Article 11
1. If a third-country national enters into the territory of a Member
State in which the need for him or her to have a visa is waived, that
Member State shall be responsible for examining his or her application
for asylum.
2. The principle set out in paragraph 1 does not apply, if the thirdcountry
national lodges his or her application for asylum in another
Member State, in which the need for him or her to have a visa for
entry into the territory is also waived. In this case, the latter Member
State shall be responsible for examining the application for asylum.
Article 12
Where the application for asylum is made in an international transit area
of an airport of a Member State by a third-country national, that
Member State shall be responsible for examining the application.
Article 13
Where no Member State responsible for examining the application for
asylum can be designated on the basis of the criteria listed in this
Regulation, the first Member State with which the application for
asylum was lodged shall be responsible for examining it.
Article 14
Where several members of a family submit applications for asylum in
the same Member State simultaneously, or on dates close enough for the
procedures for determining the Member State responsible to be
conducted together, and where the application of the criteria set out
in this Regulation would lead to them being separated, the Member
State responsible shall be determined on the basis of the following
provisions:
(a) responsibility for examining the applications for asylum of all the
members of the family shall lie with the Member State which the
criteria indicate is responsible for taking charge of the largest
number of family members;
(b) failing this, responsibility shall lie with the Member State which the
criteria indicate is responsible for examining the application of the
oldest of them.
CHAPTER IV
HUMANITARIAN CLAUSE
Article 15
1. Any Member State, even where it is not responsible under the
criteria set out in this Regulation, may bring together family
members, as well as other dependent relatives, on humanitarian
grounds based in particular on family or cultural considerations. In
this case that Member State shall, at the request of another Member
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State, examine the application for asylum of the person concerned. The
persons concerned must consent.
2. In cases in which the person concerned is dependent on the
assistance of the other on account of pregnancy or a new-born child,
serious illness, severe handicap or old age, Member States shall
normally keep or bring together the asylum seeker with another
relative present in the territory of one of the Member States, provided
that family ties existed in the country of origin.
3. If the asylum seeker is an unaccompanied minor who has a
relative or relatives in another Member State who can take care of
him or her, Member States shall if possible unite the minor with his
or her relative or relatives, unless this is not in the best interests of the
minor.
4. Where the Member State thus approached accedes to the request,
responsibility for examining the application shall be transferred to it.
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5. The conditions and procedures for implementing this Article,
including, where appropriate, conciliation mechanisms for settling
differences between Member States concerning the need to unite the
persons in question, or the place where this should be done, shall be
adopted by the Commission. Those measures, designed to amend nonessential
elements of this Regulation by supplementing it, shall be
adopted in accordance with the regulatory procedure with scrutiny
referred to in Article 27(3).
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CHAPTER V
TAKING CHARGE AND TAKING BACK
Article 16
1. The Member State responsible for examining an application for
asylum under this Regulation shall be obliged to:
(a) take charge, under the conditions laid down in Articles 17 to 19, of
an asylum seeker who has lodged an application in a different
Member State;
(b) complete the examination of the application for asylum;
(c) take back, under the conditions laid down in Article 20, an
applicant whose application is under examination and who is in
the territory of another Member State without permission;
(d) take back, under the conditions laid down in Article 20, an
applicant who has withdrawn the application under examination
and made an application in another Member State;
(e) take back, under the conditions laid down in Article 20, a thirdcountry
national whose application it has rejected and who is in the
territory of another Member State without permission.
2. Where a Member State issues a residence document to the
applicant, the obligations specified in paragraph 1 shall be transferred
to that Member State.
3. The obligations specified in paragraph 1 shall cease where the
third-country national has left the territory of the Member States for
at least three months, unless the third-country national is in possession
of a valid residence document issued by the Member State responsible.
4. The obligations specified in paragraph 1(d) and (e) shall likewise
cease once the Member State responsible for examining the application
has adopted and actually implemented, following the withdrawal or
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rejection of the application, the provisions that are necessary before the
third-country national can go to his country of origin or to another
country to which he may lawfully travel.
Article 17
1. Where a Member State with which an application for asylum has
been lodged considers that another Member State is responsible for
examining the application, it may, as quickly as possible and in any
case within three months of the date on which the application was
lodged within the meaning of Article 4(2), call upon the other
Member State to take charge of the applicant.
Where the request to take charge of an applicant is not made within the
period of three months, responsibility for examining the application for
asylum shall lie with the Member State in which the application was
lodged.
2. The requesting Member State may ask for an urgent reply in cases
where the application for asylum was lodged after leave to enter or
remain was refused, after an arrest for an unlawful stay or after the
service or execution of a removal order and/or where the asylum seeker
is held in detention.
The request shall state the reasons warranting an urgent reply and the
period within which a reply is expected. This period shall be at least one
week.
3. In both cases, the request that charge be taken by another Member
State shall be made using a standard form and including proof or
circumstantial evidence as described in the two lists mentioned in
Article 18(3) and/or relevant elements from the asylum seeker's
statement, enabling the authorities of the requested Member State to
check whether it is responsible on the basis of the criteria laid down
in this Regulation.
The rules on the preparation of and the procedures for transmitting
requests shall be adopted in accordance with the procedure referred to
in Article 27(2).
Article 18
1. The requested Member State shall make the necessary checks, and
shall give a decision on the request to take charge of an applicant within
two months of the date on which the request was received.
2. In the procedure for determining the Member State responsible for
examining the application for asylum established in this Regulation,
elements of proof and circumstantial evidence shall be used.
3. In accordance with the procedure referred to in Article 27(2) two
lists shall be established and periodically reviewed, indicating the
elements of proof and circumstantial evidence in accordance with the
following criteria:
(a) Proof:
(i) This refers to formal proof which determines responsibility
pursuant to this Regulation, as long as it is not refuted by
proof to the contrary.
(ii) The Member States shall provide the Committee provided for in
Article 27 with models of the different types of administrative
documents, in accordance with the typology established in the
list of formal proofs.
(b) Circumstantial evidence:
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(i) This refers to indicative elements which while being refutable
may be sufficient, in certain cases, according to the evidentiary
value attributed to them.
(ii) Their evidentiary value, in relation to the responsibility for
examining the application for asylum shall be assessed on a
case-by-case basis.
4. The requirement of proof should not exceed what is necessary for
the proper application of this Regulation.
5. If there is no formal proof, the requested Member State shall
acknowledge its responsibility if the circumstantial evidence is
coherent, verifiable and sufficiently detailed to establish responsibility.
6. Where the requesting Member State has pleaded urgency, in
accordance with the provisions of Article 17(2), the requested
Member State shall make every effort to conform to the time limit
requested. In exceptional cases, where it can be demonstrated that the
examination of a request for taking charge of an applicant is particularly
complex, the requested Member State may give the reply after the time
limit requested, but in any case within one month. In such situations the
requested Member State must communicate its decision to postpone a
reply to the requesting Member State within the time limit originally
requested.
7. Failure to act within the two-month period mentioned in paragraph
1 and the one-month period mentioned in paragraph 6 shall be
tantamount to accepting the request, and entail the obligation to take
charge of the person, including the provisions for proper arrangements
for arrival.
Article 19
1. Where the requested Member State accepts that it should take
charge of an applicant, the Member State in which the application for
asylum was lodged shall notify the applicant of the decision not to
examine the application, and of the obligation to transfer the applicant
to the responsible Member State.
2. The decision referred to in paragraph 1 shall set out the grounds
on which it is based. It shall contain details of the time limit for
carrying out the transfer and shall, if necessary, contain information
on the place and date at which the applicant should appear, if he is
travelling to the Member State responsible by his own means. This
decision may be subject to an appeal or a review. Appeal or review
concerning this decision shall not suspend the implementation of the
transfer unless the courts or competent bodies so decide on a case by
case basis if national legislation allows for this.
3. The transfer of the applicant from the Member State in which the
application for asylum was lodged to the Member State responsible
shall be carried out in accordance with the national law of the first
Member State, after consultation between the Member States
concerned, as soon as practically possible, and at the latest within six
months of acceptance of the request that charge be taken or of the
decision on an appeal or review where there is a suspensive effect.
If necessary, the asylum seeker shall be supplied by the requesting
Member State with a laissez passer of the design adopted in accordance
with the procedure referred to in Article 27(2).
The Member State responsible shall inform the requesting Member
State, as appropriate, of the safe arrival of the asylum seeker or of
the fact that he did not appear within the set time limit.
4. Where the transfer does not take place within the six months' time
limit, responsibility shall lie with the Member State in which the application
for asylum was lodged. This time limit may be extended up to a
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maximum of one year if the transfer could not be carried out due to
imprisonment of the asylum seeker or up to a maximum of eighteen
months if the asylum seeker absconds.
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5. The Commission may adopt supplementary rules on carrying out
transfers. Those measures, designed to amend non-essential elements of
this Regulation by supplementing it, shall be adopted in accordance
with the regulatory procedure with scrutiny referred to in Article 27(3).
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Article 20
1. An asylum seeker shall be taken back in accordance with
Article 4(5) and Article 16(1)(c), (d) and (e) as follows:
(a) the request for the applicant to be taken back must contain information
enabling the requested Member State to check that it is
responsible;
(b) the Member State called upon to take back the applicant shall be
obliged to make the necessary checks and reply to the request
addressed to it as quickly as possible and under no circumstances
exceeding a period of one month from the referral. When the
request is based on data obtained from the Eurodac system, this
time limit is reduced to two weeks;
(c) where the requested Member State does not communicate its
decision within the one month period or the two weeks period
mentioned in subparagraph (b), it shall be considered to have
agreed to take back the asylum seeker;
(d) a Member State which agrees to take back an asylum seeker shall
be obliged to readmit that person to its territory. The transfer shall
be carried out in accordance with the national law of the requesting
Member State, after consultation between the Member States
concerned, as soon as practically possible, and at the latest within
six months of acceptance of the request that charge be taken by
another Member State or of the decision on an appeal or review
where there is a suspensive effect;
(e) the requesting Member State shall notify the asylum seeker of the
decision concerning his being taken back by the Member State
responsible. The decision shall set out the grounds on which it is
based. It shall contain details of the time limit on carrying out the
transfer and shall, if necessary, contain information on the place and
date at which the applicant should appear, if he is travelling to the
Member State responsible by his own means. This decision may be
subject to an appeal or a review. Appeal or review concerning this
decision shall not suspend the implementation of the transfer except
when the courts or competent bodies so decide in a case-by-case
basis if the national legislation allows for this.
If necessary, the asylum seeker shall be supplied by the requesting
Member State with a laissez passer of the design adopted in
accordance with the procedure referred to in Article 27(2).
The Member State responsible shall inform the requesting Member
State, as appropriate, of the safe arrival of the asylum seeker or of
the fact that he did not appear within the set time limit.
2. Where the transfer does not take place within the six months' time
limit, responsibility shall lie with the Member State in which the application
for asylum was lodged. This time limit may be extended up to a
maximum of one year if the transfer or the examination of the application
could not be carried out due to imprisonment of the asylum
seeker or up to a maximum of eighteen months if the asylum seeker
absconds.
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3. The rules of proof and evidence and their interpretation, and on
the preparation of and the procedures for transmitting requests, shall be
adopted in accordance with the procedure referred to in Article 27(2).
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4. The Commission may adopt supplementary rules on carrying out
transfers. Those measures, designed to amend non-essential elements of
this Regulation by supplementing it, shall be adopted in accordance
with the regulatory procedure with scrutiny referred to in Article 27(3).
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CHAPTER VI
ADMINISTRATIVE COOPERATION
Article 21
1. Each Member State shall communicate to any Member State that
so requests such personal data concerning the asylum seeker as is
appropriate, relevant and non-excessive for:
(a) the determination of the Member State responsible for examining
the application for asylum;
(b) examining the application for asylum;
(c) implementing any obligation arising under this Regulation.
2. The information referred to in paragraph 1 may only cover:
(a) personal details of the applicant, and, where appropriate, the
members of his family (full name and where appropriate, former
name; nicknames or pseudonyms; nationality, present and former;
date and place of birth);
(b) identity and travel papers (references, validity, date of issue, issuing
authority, place of issue, etc.);
(c) other information necessary for establishing the identity of the
applicant, including fingerprints processed in accordance with Regulation
(EC) No 2725/2000;
(d) places of residence and routes travelled;
(e) residence documents or visas issued by a Member State;
(f) the place where the application was lodged;
(g) the date any previous application for asylum was lodged, the date
the present application was lodged, the stage reached in the
proceedings and the decision taken, if any.
3. Furthermore, provided it is necessary for the examination of the
application for asylum, the Member State responsible may request
another Member State to let it know on what grounds the asylum
seeker bases his application and, where applicable, the grounds for
any decisions taken concerning the applicant. The Member State may
refuse to respond to the request submitted to it, if the communication of
such information is likely to harm the essential interests of the Member
State or the protection of the liberties and fundamental rights of the
person concerned or of others. In any event, communication of the
information requested shall be subject to the written approval of the
applicant for asylum.
4. Any request for information shall set out the grounds on which it
is based and, where its purpose is to check whether there is a criterion
that is likely to entail the responsibility of the requested Member State,
shall state on what evidence, including relevant information from
reliable sources on the ways and means asylum seekers enter the territories
of the Member States, or on what specific and verifiable part of
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the applicant's statements it is based. It is understood that such relevant
information from reliable sources is not in itself sufficient to determine
the responsibility and the competence of a Member State under this
Regulation, but it may contribute to the evaluation of other indications
relating to the individual asylum seeker.
5. The requested Member State shall be obliged to reply within six
weeks.
6. The exchange of information shall be effected at the request of a
Member State and may only take place between authorities whose
designation by each Member State has been communicated to the
Commission, which shall inform the other Member States thereof.
7. The information exchanged may only be used for the purposes set
out in paragraph 1. In each Member State such information may,
depending on its type and the powers of the recipient authority, only
be communicated to the authorities and courts and tribunals entrusted
with:
(a) the determination of the Member State responsible for examining
the application for asylum;
(b) examining the application for asylum;
(c) implementing any obligation arising under this Regulation.
8. The Member State which forwards the information shall ensure
that it is accurate and up-to-date. If it transpires that that Member State
has forwarded information which is inaccurate or which should not have
been forwarded, the recipient Member States shall be informed thereof
immediately. They shall be obliged to correct such information or to
have it erased.
9. The asylum seeker shall have the right to be informed, on request,
of any data that is processed concerning him.
If he finds that this information has been processed in breach of this
Regulation or of Directive 95/46/EC of the European Parliament and 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 (1), in particular because it is incomplete or inaccurate, he is
entitled to have it corrected, erased or blocked.
The authority correcting, erasing or blocking the data shall inform, as
appropriate, the Member State transmitting or receiving the information.
10. In each Member State concerned, a record shall be kept, in the
individual file for the person concerned and/or in a register, of the
transmission and receipt of information exchanged.
11. The data exchanged shall be kept for a period not exceeding that
which is necessary for the purposes for which it is exchanged.
12. Where the data is not processed automatically or is not contained,
or intended to be entered, in a file, each Member State should take
appropriate measures to ensure compliance with this Article through
effective checks.
Article 22
1. Member States shall notify the Commission of the authorities
responsible for fulfilling the obligations arising under this Regulation
and shall ensure that those authorities have the necessary resources for
carrying out their tasks and in particular for replying within the
prescribed time limits to requests for information, requests to take
charge of and requests to take back asylum seekers.
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(1) OJ L 281, 23.11.1995, p. 31.
2. Rules relating to the establishment of secure electronic transmission
channels between the authorities mentioned in paragraph 1
for transmitting requests and ensuring that senders automatically
receive an electronic proof of delivery shall be established in accordance
with the procedure referred to in Article 27(2).
Article 23
1. Member States may, on a bilateral basis, establish administrative
arrangements between themselves concerning the practical details of the
implementation of this Regulation, in order to facilitate its application
and increase its effectiveness. Such arrangements may relate to:
(a) exchanges of liaison officers;
(b) simplification of the procedures and shortening of the time limits
relating to transmission and the examination of requests to take
charge of or take back asylum seekers;
2. The arrangements referred to in paragraph 1 shall be communicated
to the Commission. The Commission shall verify that the
arrangements referred to in paragraph 1(b) do not infringe this Regu-
lation.
CHAPTER VII
TRANSITIONAL PROVISIONS AND FINAL PROVISIONS
Article 24
1. This Regulation shall replace the Convention determining the State
responsible for examining applications for asylum lodged in one of the
Member States of the European Communities, signed in Dublin on
15 June 1990 (Dublin Convention).
2. However, to ensure continuity of the arrangements for determining
the Member State responsible for an application for asylum, where an
application has been lodged after the date mentioned in the second
paragraph of Article 29, the events that are likely to entail the responsibility
of a Member State under this Regulation shall be taken into
consideration, even if they precede that date, with the exception of the
events mentioned in Article 10(2).
3. Where, in Regulation (EC) No 2725/2000 reference is made to the
Dublin Convention, such reference shall be taken to be a reference
made to this Regulation.
Article 25
1. Any period of time prescribed in this Regulation shall be
calculated as follows:
(a) where a period expressed in days, weeks or months is to be
calculated from the moment at which an event occurs or an
action takes place, the day during which that event occurs or that
action takes place shall not be counted as falling within the period
in question;
(b) a period expressed in weeks or months shall end with the expiry of
whichever day in the last week or month is the same day of the
week or falls on the same date as the day during which the event or
action from which the period is to be calculated occurred or took
place. If, in a period expressed in months, the day on which it
should expire does not occur in the last month, the period shall
end with the expiry of the last day of that month;
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(c) time limits shall include Saturdays, Sundays and official holidays in
any of the Member States concerned.
2. Requests and replies shall be sent using any method that provides
proof of receipt.
Article 26
As far as the French Republic is concerned, this Regulation shall apply
only to its European territory.
Article 27
1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Articles 5 and 7 of
Decision 1999/468/EC shall apply.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be
set at three months.
▼M1
3. Where reference is made to this paragraph, Article 5a(1) to (4) and
Article 7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.
▼B
Article 28
At the latest three years after the date mentioned in the first paragraph
of Article 29, the Commission shall report to the European Parliament
and the Council on the application of this Regulation and, where appropriate,
shall propose the necessary amendments. Member States shall
forward to the Commission all information appropriate for the
preparation of that report, at the latest six months before that time
limit expires.
Having submitted that report, the Commission shall report to the
European Parliament and the Council on the application of this Regulation
at the same time as it submits reports on the implementation of
the Eurodac system provided for by Article 24(5) of Regulation (EC)
No 2725/2000.
Article 29
This Regulation shall enter into force on the 20th day following that of
its publication in the Official Journal of the European Union.
It shall apply to asylum applications lodged as from the first day of the
sixth month following its entry into force and, from that date, it will
apply to any request to take charge of or take back asylum seekers,
irrespective of the date on which the application was made. The
Member State responsible for the examination of an asylum application
submitted before that date shall be determined in accordance with the
criteria set out in the Dublin Convention.
This Regulation shall be binding in its entirety and directly applicable in
the Member States in conformity with the Treaty establishing the
European Community.
▼B
2003R0343 — EN — 04.12.2008 — 001.001 — 17
COUNCIL DIRECTIVE 2003/9/EC
of 27 January 2003
laying down minimum standards for the reception of asylum seekers
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
and in particular point (1)(b) of the first subparagraph of
Article 63 thereof,
Having regard to the proposal from the Commission (1
),
Having regard to the opinion of the European Parliament (2
),
Having regard to the opinion of the Economic and Social
Committee (3
),
Having regard to the opinion of the Committee of the
Regions (4
),
Whereas:
(1) A common policy on asylum, including a Common
European Asylum System, is a constituent part of the
European Union's objective of progressively establishing
an area of freedom, security and justice open to those
who, forced by circumstances, legitimately seek protection
in the Community.
(2) At its special meeting in Tampere on 15 and 16 October
1999, the European Council agreed to work towards
establishing a Common European Asylum System, based
on the full and inclusive application of the Geneva
Convention relating to the Status of Refugees of 28 July
1951, as supplemented by the New York Protocol of 31
January 1967, thus maintaining the principle of non-
refoulement.
(3) The Tampere Conclusions provide that a Common
European Asylum System should include, in the short
term, common minimum conditions of reception of
asylum seekers.
(4) The establishment of minimum standards for the reception
of asylum seekers is a further step towards a
European asylum policy.
(5) This Directive respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
In particular, this Directive seeks to ensure full respect
for human dignity and to promote the application of
Articles 1 and 18 of the said Charter.
(6) With respect to the treatment of persons falling within
the scope of this Directive, Member States are bound by
obligations under instruments of international law to
which they are party and which prohibit discrimination.
(7) Minimum standards for the reception of asylum seekers
that will normally suffice to ensure them a dignified
standard of living and comparable living conditions in
all Member States should be laid down.
(8) The harmonisation of conditions for the reception of
asylum seekers should help to limit the secondary movements
of asylum seekers influenced by the variety of
conditions for their reception.
(9) Reception of groups with special needs should be specifically
designed to meet those needs.
(10) Reception of applicants who are in detention should be
specifically designed to meet their needs in that situa-
tion.
(11) In order to ensure compliance with the minimum procedural
guarantees consisting in the opportunity to contact
organisations or groups of persons that provide legal
assistance, information should be provided on such
organisations and groups of persons.
(12) The possibility of abuse of the reception system should
be restricted by laying down cases for the reduction or
withdrawal of reception conditions for asylum seekers.
(13) The efficiency of national reception systems and cooperation
among Member States in the field of reception of
asylum seekers should be secured.
(14) Appropriate coordination should be encouraged between
the competent authorities as regards the reception of
asylum seekers, and harmonious relationships between
local communities and accommodation centres should
therefore be promoted.
(15) It is in the very nature of minimum standards that
Member States have the power to introduce or maintain
more favourable provisions for third-country nationals
and stateless persons who ask for international protection
from a Member State.
(16) In this spirit, Member States are also invited to apply the
provisions of this Directive in connection with procedures
for deciding on applications for forms of protection
other than that emanating from the Geneva
Convention for third country nationals and stateless
persons.
(17) The implementation of this Directive should be evaluated
at regular intervals.
6.2.2003L 31/18 Official Journal of the European UnionEN
(1
) OJ C 213 E, 31.7.2001, p. 286.
(2
) Opinion delivered on 25 April 2002 (not yet published in the Official
Journal).
(3
) OJ C 48, 21.2.2002, p. 63.
(4
) OJ C 107, 3.5.2002, p. 85.
(18) Since the objectives of the proposed action, namely to
establish minimum standards on the reception of asylum
seekers in Member States, cannot be sufficiently achieved
by the Member States and can therefore, by reason of
the scale and effects of the proposed action, be better
achieved by the Community, the Community may adopt
measures in accordance with the principles 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 Directive does not go beyond what is
necessary in order to achieve those objectives.
(19) 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 gave
notice, by letter of 18 August 2001, of its wish to take
part in the adoption and application of this Directive.
(20) In accordance with Article 1 of the said Protocol, Ireland
is not participating in the adoption of this Directive.
Consequently, and without prejudice to Article 4 of the
aforementioned Protocol, the provisions of this Directive
do not apply to Ireland.
(21) 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 is not participating in
the adoption of this Directive and is therefore neither
bound by it nor subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
PURPOSE, DEFINITIONS AND SCOPE
Article 1
Purpose
The purpose of this Directive is to lay down minimum standards
for the reception of asylum seekers in Member States.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘Geneva Convention’ shall mean the Convention of 28 July
1951 relating to the status of refugees, as amended by the
New York Protocol of 31 January 1967;
(b) ‘application for asylum’ shall mean the application made by
a third-country national or a stateless person which can be
understood as a request for international protection from a
Member State, under the Geneva Convention. Any application
for international protection is presumed to be an
application for asylum unless a third-country national or a
stateless person explicitly requests another kind of protection
that can be applied for separately;
(c) ‘applicant’ or ‘asylum seeker’ shall mean a third country
national or a stateless person who has made an application
for asylum in respect of which a final decision has not yet
been taken;
(d) ‘family members’ shall mean, in so far as the family already
existed in the country of origin, the following members of
the applicant's family who are present in the same Member
State in relation to the application for asylum:
(i) the spouse of the asylum seeker or his or her unmarried
partner in a stable relationship, where the legislation or
practice of the Member State concerned treats unmarried
couples in a way comparable to married couples
under its law relating to aliens;
(ii) the minor children of the couple referred to in point (i)
or of the applicant, on condition that they are unmarried
and dependent and regardless of whether they were
born in or out of wedlock or adopted as defined under
the national law;
(e) ‘refugee’ shall mean a person who fulfils the requirements
of Article 1(A) of the Geneva Convention;
(f) ‘refugee status’ shall mean the status granted by a Member
State to a person who is a refugee and is admitted as such
to the territory of that Member State;
(g) ‘procedures’ and ‘appeals’, shall mean the procedures and
appeals established by Member States in their national law;
(h) ‘unaccompanied minors’ shall mean persons below the age
of eighteen who arrive in the territory of the Member States
unaccompanied by an adult responsible for them whether
by law or by custom, and for as long as they are not effectively
taken into the care of such a person; it shall include
minors who are left unaccompanied after they have entered
the territory of Member States;
(i) ‘reception conditions’ shall mean the full set of measures
that Member States grant to asylum seekers in accordance
with this Directive;
(j) ‘material reception conditions’ shall mean the reception
conditions that include housing, food and clothing,
provided in kind, or as financial allowances or in vouchers,
and a daily expenses allowance;
(k) ‘detention’ shall mean confinement of an asylum seeker by
a Member State within a particular place, where the applicant
is deprived of his or her freedom of movement;
(l) ‘accommodation centre’ shall mean any place used for
collective housing of asylum seekers.
Article 3
Scope
1. This Directive shall apply to all third country nationals
and stateless persons who make an application for asylum at
the border or in the territory of a Member State as long as they
are allowed to remain on the territory as asylum seekers, as
well as to family members, if they are covered by such application
for asylum according to the national law.
6.2.2003 L 31/19Official Journal of the European UnionEN
2. This Directive shall not apply in cases of requests for
diplomatic or territorial asylum submitted to representations of
Member States.
3. This Directive shall not apply when the provisions of
Council Directive 2001/55/EC of 20 July 2001 on minimum
standards for giving temporary protection in the event of a
mass influx of displaced persons and on measures promoting a
balance of efforts between Member States in receiving such
persons and bearing the consequences thereof (1
) are applied.
4. Member States may decide to apply this Directive in
connection with procedures for deciding on applications for
kinds of protection other than that emanating from the Geneva
Convention for third-country nationals or stateless persons
who are found not to be refugees.
Article 4
More favourable provisions
Member States may introduce or retain more favourable provisions
in the field of reception conditions for asylum seekers
and other close relatives of the applicant who are present in
the same Member State when they are dependent on him or
for humanitarian reasons insofar as these provisions are
compatible with this Directive.
CHAPTER II
GENERAL PROVISIONS ON RECEPTION CONDITIONS
Article 5
Information
1. Member States shall inform asylum seekers, within a
reasonable time not exceeding fifteen days after they have
lodged their application for asylum with the competent
authority, of at least any established benefits and of the obligations
with which they must comply relating to reception condi-
tions.
Member States shall ensure that applicants are provided with
information on organisations or groups of persons that provide
specific legal assistance and organisations that might be able to
help or inform them concerning the available reception conditions,
including health care.
2. Member States shall ensure that the information referred
to in paragraph 1 is in writing and, as far as possible, in a
language that the applicants may reasonably be supposed to
understand. Where appropriate, this information may also be
supplied orally.
Article 6
Documentation
1. Member States shall ensure that, within three days after
an application is lodged with the competent authority, the
applicant is provided with a document issued in his or her own
name certifying his or her status as an asylum seeker or testifying
that he or she is allowed to stay in the territory of the
Member State while his or her application is pending or being
examined.
If the holder is not free to move within all or a part of the territory
of the Member State, the document shall also certify this
fact.
2. Member States may exclude application of this Article
when the asylum seeker is in detention and during the examination
of an application for asylum made at the border or
within the context of a procedure to decide on the right of the
applicant legally to enter the territory of a Member State. In
specific cases, during the examination of an application for
asylum, Member States may provide applicants with other
evidence equivalent to the document referred to in paragraph
1.
3. The document referred to in paragraph 1 need not certify
the identity of the asylum seeker.
4. Member States shall adopt the necessary measures to
provide asylum seekers with the document referred to in paragraph
1, which must be valid for as long as they are authorised
to remain in the territory of the Member State concerned or at
the border thereof.
5. Member States may provide asylum seekers with a travel
document when serious humanitarian reasons arise that require
their presence in another State.
Article 7
Residence and freedom of movement
1. Asylum seekers may move freely within the territory of
the host Member State or within an area assigned to them by
that Member State. The assigned area shall not affect the
unalienable sphere of private life and shall allow sufficient
scope for guaranteeing access to all benefits under this Direc-
tive.
2. Member States may decide on the residence of the asylum
seeker for reasons of public interest, public order or, when
necessary, for the swift processing and effective monitoring of
his or her application.
3. When it proves necessary, for example for legal reasons
or reasons of public order, Member States may confine an
applicant to a particular place in accordance with their national
law.
6.2.2003L 31/20 Official Journal of the European UnionEN
(1
) OJ L 212, 7.8.2001, p. 12.
4. Member States may make provision of the material reception
conditions subject to actual residence by the applicants in
a specific place, to be determined by the Member States. Such a
decision, which may be of a general nature, shall be taken individually
and established by national legislation.
5. Member States shall provide for the possibility of granting
applicants temporary permission to leave the place of residence
mentioned in paragraphs 2 and 4 and/or the assigned area
mentioned in paragraph 1. Decisions shall be taken individually,
objectively and impartially and reasons shall be given if
they are negative.
The applicant shall not require permission to keep appointments
with authorities and courts if his or her appearance is
necessary.
6. Member States shall require applicants to inform the
competent authorities of their current address and notify any
change of address to such authorities as soon as possible.
Article 8
Families
Member States shall take appropriate measures to maintain as
far as possible family unity as present within their territory, if
applicants are provided with housing by the Member State
concerned. Such measures shall be implemented with the
asylum seeker's agreement.
Article 9
Medical screening
Member States may require medical screening for applicants on
public health grounds.
Article 10
Schooling and education of minors
1. Member States shall grant to minor children of asylum
seekers and to asylum seekers who are minors access to the
education system under similar conditions as nationals of the
host Member State for so long as an expulsion measure against
them or their parents is not actually enforced. Such education
may be provided in accommodation centres.
The Member State concerned may stipulate that such access
must be confined to the State education system.
Minors shall be younger than the age of legal majority in the
Member State in which the application for asylum was lodged
or is being examined. Member States shall not withdraw
secondary education for the sole reason that the minor has
reached the age of majority.
2. Access to the education system shall not be postponed
for more than three months from the date the application for
asylum was lodged by the minor or the minor's parents. This
period may be extended to one year where specific education is
provided in order to facilitate access to the education system.
3. Where access to the education system as set out in paragraph
1 is not possible due to the specific situation of the
minor, the Member State may offer other education arrange-
ments.
Article 11
Employment
1. Member States shall determine a period of time, starting
from the date on which an application for asylum was lodged,
during which an applicant shall not have access to the labour
market.
2. If a decision at first instance has not been taken within
one year of the presentation of an application for asylum and
this delay cannot be attributed to the applicant, Member States
shall decide the conditions for granting access to the labour
market for the applicant.
3. Access to the labour market shall not be withdrawn
during appeals procedures, where an appeal against a negative
decision in a regular procedure has suspensive effect, until such
time as a negative decision on the appeal is notified.
4. For reasons of labour market policies, Member States may
give priority to EU citizens and nationals of States parties to
the Agreement on the European Economic Area and also to
legally resident third-country nationals.
Article 12
Vocational training
Member States may allow asylum seekers access to vocational
training irrespective of whether they have access to the labour
market.
Access to vocational training relating to an employment
contract shall depend on the extent to which the applicant has
access to the labour market in accordance with Article 11.
Article 13
General rules on material reception conditions and health
care
1. Member States shall ensure that material reception conditions
are available to applicants when they make their application
for asylum.
2. Member States shall make provisions on material reception
conditions to ensure a standard of living adequate for the
health of applicants and capable of ensuring their subsistence.
6.2.2003 L 31/21Official Journal of the European UnionEN
Member States shall ensure that that standard of living is met
in the specific situation of persons who have special needs, in
accordance with Article 17, as well as in relation to the situation
of persons who are in detention.
3. Member States may make the provision of all or some of
the material reception conditions and health care subject to the
condition that applicants do not have sufficient means to have
a standard of living adequate for their health and to enable
their subsistence.
4. Member States may require applicants to cover or contribute
to the cost of the material reception conditions and of the
health care provided for in this Directive, pursuant to the
provision of paragraph 3, if the applicants have sufficient
resources, for example if they have been working for a reasonable
period of time.
If it transpires that an applicant had sufficient means to cover
material reception conditions and health care at the time when
these basic needs were being covered, Member States may ask
the asylum seeker for a refund.
5. Material reception conditions may be provided in kind, or
in the form of financial allowances or vouchers or in a combination
of these provisions.
Where Member States provide material reception conditions in
the form of financial allowances or vouchers, the amount
thereof shall be determined in accordance with the principles
set out in this Article.
Article 14
Modalities for material reception conditions
1. Where housing is provided in kind, it should take one or
a combination of the following forms:
(a) premises used for the purpose of housing applicants during
the examination of an application for asylum lodged at the
border;
(b) accommodation centres which guarantee an adequate standard
of living;
(c) private houses, flats, hotels or other premises adapted for
housing applicants.
2. Member States shall ensure that applicants provided with
the housing referred to in paragraph 1(a), (b) and (c) are
assured:
(a) protection of their family life;
(b) the possibility of communicating with relatives, legal advisers
and representatives of the United Nations High
Commissioner for Refugees (UNHCR) and non-governmental
organisations (NGOs) recognised by Member States.
Member States shall pay particular attention to the prevention
of assault within the premises and accommodation centres
referred to in paragraph 1(a) and (b).
3. Member States shall ensure, if appropriate, that minor
children of applicants or applicants who are minors are lodged
with their parents or with the adult family member responsible
for them whether by law or by custom.
4. Member States shall ensure that transfers of applicants
from one housing facility to another take place only when
necessary. Member States shall provide for the possibility for
applicants to inform their legal advisers of the transfer and of
their new address.
5. Persons working in accommodation centres shall be
adequately trained and shall be bound by the confidentiality
principle as defined in the national law in relation to any information
they obtain in the course of their work.
6. Member States may involve applicants in managing the
material resources and non-material aspects of life in the centre
through an advisory board or council representing residents.
7. Legal advisors or counsellors of asylum seekers and representatives
of the United Nations High Commissioner for Refugees
or non-governmental organisations designated by the
latter and recognised by the Member State concerned shall be
granted access to accommodation centres and other housing
facilities in order to assist the said asylum seekers. Limits on
such access may be imposed only on grounds relating to the
security of the centres and facilities and of the asylum seekers.
8. Member States may exceptionally set modalities for material
reception conditions different from those provided for in
this Article, for a reasonable period which shall be as short as
possible, when:
— an initial assessment of the specific needs of the applicant is
required,
— material reception conditions, as provided for in this
Article, are not available in a certain geographical area,
— housing capacities normally available are temporarily
exhausted,
— the asylum seeker is in detention or confined to border
posts.
These different conditions shall cover in any case basic needs.
Article 15
Health care
1. Member States shall ensure that applicants receive the
necessary health care which shall include, at least, emergency
care and essential treatment of illness.
6.2.2003L 31/22 Official Journal of the European UnionEN
2. Member States shall provide necessary medical or other
assistance to applicants who have special needs.
CHAPTER III
REDUCTION OR WITHDRAWAL OF RECEPTION CONDITIONS
Article 16
Reduction or withdrawal of reception conditions
1. Member States may reduce or withdraw reception conditions
in the following cases:
(a) where an asylum seeker:
— abandons the place of residence determined by the
competent authority without informing it or, if
requested, without permission, or
— does not comply with reporting duties or with requests
to provide information or to appear for personal interviews
concerning the asylum procedure during a
reasonable period laid down in national law, or
— has already lodged an application in the same Member
State.
When the applicant is traced or voluntarily reports to the
competent authority, a duly motivated decision, based on
the reasons for the disappearance, shall be taken on the
reinstallation of the grant of some or all of the reception
conditions;
(b) where an applicant has concealed financial resources and
has therefore unduly benefited from material reception
conditions.
If it transpires that an applicant had sufficient means to
cover material reception conditions and health care at the
time when these basic needs were being covered, Member
States may ask the asylum seeker for a refund.
2. Member States may refuse conditions in cases where an
asylum seeker has failed to demonstrate that the asylum claim
was made as soon as reasonably practicable after arrival in that
Member State.
3. Member States may determine sanctions applicable to
serious breaching of the rules of the accommodation centres as
well as to seriously violent behaviour.
4. Decisions for reduction, withdrawal or refusal of reception
conditions or sanctions referred to in paragraphs 1, 2 and
3 shall be taken individually, objectively and impartially and
reasons shall be given. Decisions shall be based on the particular
situation of the person concerned, especially with regard
to persons covered by Article 17, taking into account the principle
of proportionality. Member States shall under all circumstances
ensure access to emergency health care.
5. Member States shall ensure that material reception conditions
are not withdrawn or reduced before a negative decision
is taken.
CHAPTER IV
PROVISIONS FOR PERSONS WITH SPECIAL NEEDS
Article 17
General principle
1. Member States shall take into account the specific situation
of vulnerable persons such as minors, unaccompanied
minors, disabled people, elderly people, pregnant women,
single parents with minor children and persons who have been
subjected to torture, rape or other serious forms of psychological,
physical or sexual violence, in the national legislation
implementing the provisions of Chapter II relating to material
reception conditions and health care.
2. Paragraph 1 shall apply only to persons found to have
special needs after an individual evaluation of their situation.
Article 18
Minors
1. The best interests of the child shall be a primary consideration
for Member States when implementing the provisions
of this Directive that involve minors.
2. Member States shall ensure access to rehabilitation
services for minors who have been victims of any form of
abuse, neglect, exploitation, torture or cruel, inhuman and
degrading treatment, or who have suffered from armed
conflicts, and ensure that appropriate mental health care is
developed and qualified counselling is provided when needed.
Article 19
Unaccompanied minors
1. Member States shall as soon as possible take measures to
ensure the necessary representation of unaccompanied minors
by legal guardianship or, where necessary, representation by an
organisation which is responsible for the care and well-being of
minors, or by any other appropriate representation. Regular
assessments shall be made by the appropriate authorities.
6.2.2003 L 31/23Official Journal of the European UnionEN
2. Unaccompanied minors who make an application for
asylum shall, from the moment they are admitted to the territory
to the moment they are obliged to leave the host Member
State in which the application for asylum was made or is being
examined, be placed:
(a) with adult relatives;
(b) with a foster-family;
(c) in accommodation centres with special provisions for
minors;
(d) in other accommodation suitable for minors.
Member States may place unaccompanied minors aged 16 or
over in accommodation centres for adult asylum seekers.
As far as possible, siblings shall be kept together, taking into
account the best interests of the minor concerned and, in particular,
his or her age and degree of maturity. Changes of residence
of unaccompanied minors shall be limited to a
minimum.
3. Member States, protecting the unaccompanied minor's
best interests, shall endeavour to trace the members of his or
her family as soon as possible. In cases where there may be a
threat to the life or integrity of the minor or his or her close
relatives, particularly if they have remained in the country of
origin, care must be taken to ensure that the collection, processing
and circulation of information concerning those persons is
undertaken on a confidential basis, so as to avoid jeopardising
their safety.
4. Those working with unaccompanied minors shall have
had or receive appropriate training concerning their needs, and
shall be bound by the confidentiality principle as defined in the
national law, in relation to any information they obtain in the
course of their work.
Article 20
Victims of torture and violence
Member States shall ensure that, if necessary, persons who have
been subjected to torture, rape or other serious acts of violence
receive the necessary treatment of damages caused by the aforementioned
acts.
CHAPTER V
APPEALS
Article 21
Appeals
1. Member States shall ensure that negative decisions
relating to the granting of benefits under this Directive or decisions
taken under Article 7 which individually affect asylum
seekers may be the subject of an appeal within the procedures
laid down in the national law. At least in the last instance the
possibility of an appeal or a review before a judicial body shall
be granted.
2. Procedures for access to legal assistance in such cases
shall be laid down in national law.
CHAPTER VI
ACTIONS TO IMPROVE THE EFFICIENCY OF THE RECEPTION
SYSTEM
Article 22
Cooperation
Member States shall regularly inform the Commission on the
data concerning the number of persons, broken down by sex
and age, covered by reception conditions and provide full information
on the type, name and format of the documents
provided for by Article 6.
Article 23
Guidance, monitoring and control system
Member States shall, with due respect to their constitutional
structure, ensure that appropriate guidance, monitoring and
control of the level of reception conditions are established.
Article 24
Staff and resources
1. Member States shall take appropriate measures to ensure
that authorities and other organisations implementing this
Directive have received the necessary basic training with
respect to the needs of both male and female applicants.
2. Member States shall allocate the necessary resources in
connection with the national provisions enacted to implement
this Directive.
CHAPTER VII
FINAL PROVISIONS
Article 25
Reports
By 6 August 2006, the Commission shall report to the
European Parliament and the Council on the application of this
Directive and shall propose any amendments that are neces-
sary.
Member States shall send the Commission all the information
that is appropriate for drawing up the report, including the
statistical data provided for by Article 22 by 6 February 2006.
After presenting the report, the Commission shall report to the
European Parliament and the Council on the application of this
Directive at least every five years.
6.2.2003L 31/24 Official Journal of the European UnionEN
Article 26
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 6 February 2005. They shall forthwith inform the
Commission thereof.
When the Member States adopt these measures, they shall
contain a reference to this Directive or shall be accompanied
by such a reference on the occasion of their official publication.
Member States shall determine how such a reference is to be
made.
2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field relating to the enforcement of this Directive.
Article 27
Entry into force
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.
Article 28
Addressees
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Union.
Done at Brussels, 27 January 2003.
For the Council
The President
G. PAPANDREOU
6.2.2003 L 31/25Official Journal of the European UnionEN
COUNCIL DIRECTIVE 2004/83/EC
of 29 April 2004
on minimum standards for the qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international protection and the content of
the protection granted
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
and in particular points 1(c), 2(a) and 3(a) of Article
63 thereof,
Having regard to the proposal from the Commission (1
),
Having regard to the opinion of the European Parliament (2
),
Having regard to the opinion of the European Economic and
Social Committee (3
),
Having regard to the opinion of the Committee of the
Regions (4
),
Whereas:
(1) A common policy on asylum, including a Common
European Asylum System, is a constituent part of the
European Union's objective of progressively establishing
an area of freedom, security and justice open to those
who, forced by circumstances, legitimately seek protection
in the Community.
(2) The European Council at its special meeting in Tampere
on 15 and 16 October 1999 agreed to work towards
establishing a Common European Asylum System, based
on the full and inclusive application of the Geneva
Convention relating to the Status of Refugees of
28 July 1951 (Geneva Convention), as supplemented by
the New York Protocol of 31 January 1967 (Protocol),
thus affirming the principle of non-refoulement and
ensuring that nobody is sent back to persecution.
(3) The Geneva Convention and Protocol provide the
cornerstone of the international legal regime for the
protection of refugees.
(4) The Tampere conclusions provide that a Common European
Asylum System should include, in the short term,
the approximation of rules on the recognition of refugees
and the content of refugee status.
(5) The Tampere conclusions also provide that rules
regarding refugee status should be complemented by
measures on subsidiary forms of protection, offering an
appropriate status to any person in need of such protec-
tion.
(6) The main objective of this Directive is, on the one hand,
to ensure that Member States apply common criteria for
the identification of persons genuinely in need of international
protection, and, on the other hand, to ensure
that a minimum level of benefits is available for these
persons in all Member States.
(7) The approximation of rules on the recognition and
content of refugee and subsidiary protection status
should help to limit the secondary movements of applicants
for asylum between Member States, where such
movement is purely caused by differences in legal frame-
works.
(8) It is in the very nature of minimum standards that
Member States should have the power to introduce or
maintain more favourable provisions for third country
nationals or stateless persons who request international
protection from a Member State, where such a request is
understood to be on the grounds that the person
concerned is either a refugee within the meaning of
Article 1(A) of the Geneva Convention, or a person who
otherwise needs international protection.
(9) Those third country nationals or stateless persons, who
are allowed to remain in the territories of the Member
States for reasons not due to a need for international
protection but on a discretionary basis on compassionate
or humanitarian grounds, fall outside the scope of this
Directive.
(10) This Directive respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union. In
particular this Directive seeks to ensure full respect for
human dignity and the right to asylum of applicants for
asylum and their accompanying family members.
(11) With respect to the treatment of persons falling within
the scope of this Directive, Member States are bound by
obligations under instruments of international law to
which they are party and which prohibit discrimination.
30.9.2004L 304/12 Official Journal of the European UnionEN
(1
) OJ C 51 E, 26.2.2002, p. 325.
(2
) OJ C 300 E, 11.12.2003, p. 25.
(3
) OJ C 221, 17.9.2002, p. 43.
(4
) OJ C 278, 14.11.2002, p. 44.
(12) The ‘best interests of the child’ should be a primary
consideration of Member States when implementing this
Directive.
(13) This Directive is without prejudice to the Protocol on
asylum for nationals of Member States of the European
Union as annexed to the Treaty Establishing the European
Community.
(14) The recognition of refugee status is a declaratory act.
(15) Consultations with the United Nations High Commissioner
for Refugees may provide valuable guidance for
Member States when determining refugee status
according to Article 1 of the Geneva Convention.
(16) Minimum standards for the definition and content of
refugee status should be laid down to guide the competent
national bodies of Member States in the application
of the Geneva Convention.
(17) It is necessary to introduce common criteria for recognising
applicants for asylum as refugees within the
meaning of Article 1 of the Geneva Convention.
(18) In particular, it is necessary to introduce common
concepts of protection needs arising sur place; sources of
harm and protection; internal protection; and persecution,
including the reasons for persecution.
(19) Protection can be provided not only by the State but
also by parties or organisations, including international
organisations, meeting the conditions of this Directive,
which control a region or a larger area within
the territory of the State.
(20) It is necessary, when assessing applications from minors
for international protection, that Member States should
have regard to child-specific forms of persecution.
(21) It is equally necessary to introduce a common concept
of the persecution ground ‘membership of a particular
social group’.
(22) Acts contrary to the purposes and principles of the
United Nations are set out in the Preamble and Articles 1
and 2 of the Charter of the United Nations and are,
amongst others, embodied in the United Nations Resolutions
relating to measures combating terrorism, which
declare that ‘acts, methods and practices of terrorism are
contrary to the purposes and principles of the United
Nations’ and that ‘knowingly financing, planning and
inciting terrorist acts are also contrary to the purposes
and principles of the United Nations’.
(23) As referred to in Article 14, ‘status’ can also include
refugee status.
(24) Minimum standards for the definition and content of
subsidiary protection status should also be laid
down. Subsidiary protection should be complementary
and additional to the refugee protection enshrined in the
Geneva Convention.
(25) It is necessary to introduce criteria on the basis of which
applicants for international protection are to be recognised
as eligible for subsidiary protection. Those criteria
should be drawn from international obligations under
human rights instruments and practices existing in
Member States.
(26) Risks to which a population of a country or a section of
the population is generally exposed do normally not
create in themselves an individual threat which would
qualify as serious harm.
(27) Family members, merely due to their relation to the
refugee, will normally be vulnerable to acts of persecution
in such a manner that could be the basis for refugee
status.
(28) The notion of national security and public order also
covers cases in which a third country national belongs
to an association which supports international terrorism
or supports such an association.
(29) While the benefits provided to family members of beneficiaries
of subsidiary protection status do not necessarily
have to be the same as those provided to the qualifying
beneficiary, they need to be fair in comparison to those
enjoyed by beneficiaries of subsidiary protection status.
(30) Within the limits set out by international obligations,
Member States may lay down that the granting of benefits
with regard to access to employment, social welfare,
health care and access to integration facilities requires
the prior issue of a residence permit.
(31) This Directive does not apply to financial benefits from
the Member States which are granted to promote education
and training.
(32) The practical difficulties encountered by beneficiaries of
refugee or subsidiary protection status concerning the
authentication of their foreign diplomas, certificates or
other evidence of formal qualification should be taken
into account.
(33) Especially to avoid social hardship, it is appropriate, for
beneficiaries of refugee or subsidiary protection status,
to provide without discrimination in the context of
social assistance the adequate social welfare and means
of subsistence.
30.9.2004 L 304/13Official Journal of the European UnionEN
(34) With regard to social assistance and health care, the
modalities and detail of the provision of core benefits to
beneficiaries of subsidiary protection status should be
determined by national law. The possibility of limiting
the benefits for beneficiaries of subsidiary protection
status to core benefits is to be understood in the sense
that this notion covers at least minimum income
support, assistance in case of illness, pregnancy and
parental assistance, in so far as they are granted to
nationals according to the legislation of the Member
State concerned.
(35) Access to health care, including both physical and
mental health care, should be ensured to beneficiaries of
refugee or subsidiary protection status.
(36) The implementation of this Directive should be evaluated
at regular intervals, taking into consideration in particular
the evolution of the international obligations of
Member States regarding non-refoulement, the evolution
of the labour markets in the Member States as well as
the development of common basic principles for integra-
tion.
(37) Since the objectives of the proposed Directive, namely to
establish minimum standards for the granting of international
protection to third country nationals and stateless
persons by Member States and the content of the protection
granted, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
and effects of the Directive, 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
Directive does not go beyond what is necessary in order
to achieve those objectives.
(38) 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,
by letter of 28 January 2002, its wish to take part
in the adoption and application of this Directive.
(39) 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, by letter
of 13 February 2002, its wish to take part in the adoption
and application of this Directive.
(40) 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 is not taking part in the
adoption of this Directive and is not bound by it or
subject to its application,
HAS ADOPTED THIS DIRECTIVE,
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
The purpose of this Directive is to lay down minimum standards
for the qualification of third country nationals or stateless
persons as refugees or as persons who otherwise need international
protection and the content of the protection granted.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘international protection’ means the refugee and subsidiary
protection status as defined in (d) and (f);
(b) ‘Geneva Convention’ means the Convention relating to the
status of refugees done at Geneva on 28 July 1951, as
amended by the New York Protocol of 31 January 1967;
(c) ‘refugee’ means a third country national who, owing to a
well-founded fear of being persecuted for reasons of race,
religion, nationality, political opinion or membership of a
particular social group, is outside the country of nationality
and is unable or, owing to such fear, is unwilling to avail
himself or herself of the protection of that country, or a
stateless person, who, being outside of the country of
former habitual residence for the same reasons as
mentioned above, is unable or, owing to such fear,
unwilling to return to it, and to whom Article 12 does not
apply;
(d) ‘refugee status’ means the recognition by a Member State of
a third country national or a stateless person as a refugee;
(e) ‘person eligible for subsidiary protection’ means a third
country national or a stateless person who does not qualify
as a refugee but in respect of whom substantial grounds
have been shown for believing that the person concerned,
if returned to his or her country of origin, or in the case of
a stateless person, to his or her country of former habitual
residence, would face a real risk of suffering serious harm
as defined in Article 15, and to whom Article 17(1) and (2)
do not apply, and is unable, or, owing to such risk,
unwilling to avail himself or herself of the protection of
that country;
30.9.2004L 304/14 Official Journal of the European UnionEN
(f) ‘subsidiary protection status’ means the recognition by a
Member State of a third country national or a stateless
person as a person eligible for subsidiary protection;
(g) ‘application for international protection’ means a request
made by a third country national or a stateless person for
protection from a Member State, who can be understood to
seek refugee status or subsidiary protection status, and who
does not explicitly request another kind of protection,
outside the scope of this Directive, that can be applied for
separately;
(h) ‘family members’ means, insofar as the family already
existed in the country of origin, the following members of
the family of the beneficiary of refugee or subsidiary
protection status who are present in the same Member
State in relation to the application for international protec-
tion:
— the spouse of the beneficiary of refugee or subsidiary
protection status or his or her unmarried partner in a
stable relationship, where the legislation or practice of
the Member State concerned treats unmarried couples
in a way comparable to married couples under its law
relating to aliens,
— the minor children of the couple referred to in the first
indent or of the beneficiary of refugee or subsidiary
protection status, on condition that they are unmarried
and dependent and regardless of whether they were
born in or out of wedlock or adopted as defined under
the national law;
(i) ‘unaccompanied minors’ means third-country nationals or
stateless persons below the age of 18, who arrive on
the territory of the Member States unaccompanied by an
adult responsible for them whether by law or custom, and
for as long as they are not effectively taken into the care of
such a person; it includes minors who are left unaccompanied
after they have entered the territory of the Member
States;
(j) ‘residence permit’ means any permit or authorisation issued
by the authorities of a Member State, in the form provided
for under that State's legislation, allowing a third country
national or stateless person to reside on its territory;
(k) ‘country of origin’ means the country or countries of
nationality or, for stateless persons, of former habitual resi-
dence.
Article 3
More favourable standards
Member States may introduce or retain more favourable standards
for determining who qualifies as a refugee or as a person
eligible for subsidiary protection, and for determining the
content of international protection, in so far as those standards
are compatible with this Directive.
CHAPTER II
ASSESSMENT OF APPLICATIONS FOR INTERNATIONAL
PROTECTION
Article 4
Assessment of facts and circumstances
1. Member States may consider it the duty of the applicant
to submit as soon as possible all elements needed to
substantiate the application for international protection. In
cooperation with the applicant it is the duty of the Member
State to assess the relevant elements of the application.
2. The elements referred to in of paragraph 1 consist of the
applicant's statements and all documentation at the applicants
disposal regarding the applicant's age, background, including
that of relevant relatives, identity, nationality(ies), country(ies)
and place(s) of previous residence, previous asylum applications,
travel routes, identity and travel documents and the
reasons for applying for international protection.
3. The assessment of an application for international protection
is to be carried out on an individual basis and includes
taking into account:
(a) all relevant facts as they relate to the country of origin at
the time of taking a decision on the application; including
laws and regulations of the country of origin and the
manner in which they are applied;
(b) the relevant statements and documentation presented by
the applicant including information on whether the applicant
has been or may be subject to persecution or serious
harm;
(c) the individual position and personal circumstances of the
applicant, including factors such as background, gender and
age, so as to assess whether, on the basis of the applicant's
personal circumstances, the acts to which the applicant has
been or could be exposed would amount to persecution or
serious harm;
(d) whether the applicant's activities since leaving the country
of origin were engaged in for the sole or main purpose of
creating the necessary conditions for applying for international
protection, so as to assess whether these activities
will expose the applicant to persecution or serious harm if
returned to that country;
(e) whether the applicant could reasonably be expected to avail
himself of the protection of another country where he
could assert citizenship.
4. The fact that an applicant has already been subject to
persecution or serious harm or to direct threats of such persecution
or such harm, is a serious indication of the applicant's
well-founded fear of persecution or real risk of suffering serious
harm, unless there are good reasons to consider that such
persecution or serious harm will not be repeated.
30.9.2004 L 304/15Official Journal of the European UnionEN
5. Where Member States apply the principle according to
which it is the duty of the applicant to substantiate the application
for international protection and where aspects of the applicant's
statements are not supported by documentary or other
evidence, those aspects shall not need confirmation, when the
following conditions are met:
(a) the applicant has made a genuine effort to substantiate his
application;
(b) all relevant elements, at the applicant's disposal, have been
submitted, and a satisfactory explanation regarding any lack
of other relevant elements has been given;
(c) the applicant's statements are found to be coherent and
plausible and do not run counter to available specific and
general information relevant to the applicant's case;
(d) the applicant has applied for international protection at the
earliest possible time, unless the applicant can demonstrate
good reason for not having done so; and
(e) the general credibility of the applicant has been established.
Article 5
International protection needs arising sur place
1. A well-founded fear of being persecuted or a real risk of
suffering serious harm may be based on events which have
taken place since the applicant left the country of origin.
2. A well-founded fear of being persecuted or a real risk of
suffering serious harm may be based on activities which have
been engaged in by the applicant since he left the country of
origin, in particular where it is established that the activities
relied upon constitute the expression and continuation of
convictions or orientations held in the country of origin.
3. Without prejudice to the Geneva Convention, Member
States may determine that an applicant who files a subsequent
application shall normally not be granted refugee status, if the
risk of persecution is based on circumstances which the applicant
has created by his own decision since leaving the country
of origin.
Article 6
Actors of persecution or serious harm
Actors of persecution or serious harm include:
(a) the State;
(b) parties or organisations controlling the State or a substantial
part of the territory of the State;
(c) non-State actors, if it can be demonstrated that the actors
mentioned in (a) and (b), including international organisations,
are unable or unwilling to provide protection against
persecution or serious harm as defined in Article 7.
Article 7
Actors of protection
1. Protection can be provided by:
(a) the State; or
(b) parties or organisations, including international organisations,
controlling the State or a substantial part of
the territory of the State.
2. Protection is generally provided when the actors
mentioned in paragraph 1 take reasonable steps to prevent the
persecution or suffering of serious harm, inter alia, by operating
an effective legal system for the detection, prosecution and
punishment of acts constituting persecution or serious harm,
and the applicant has access to such protection.
3. When assessing whether an international organisation
controls a State or a substantial part of its territory and
provides protection as described in paragraph 2, Member States
shall take into account any guidance which may be provided in
relevant Council acts.
Article 8
Internal protection
1. As part of the assessment of the application for international
protection, Member States may determine that an applicant
is not in need of international protection if in a part of the
country of origin there is no well-founded fear of being persecuted
or no real risk of suffering serious harm and the applicant
can reasonably be expected to stay in that part of the
country.
2. In examining whether a part of the country of origin is in
accordance with paragraph 1, Member States shall at the time
of taking the decision on the application have regard to the
general circumstances prevailing in that part of the country
and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles
to return to the country of origin.
CHAPTER III
QUALIFICATION FOR BEING A REFUGEE
Article 9
Acts of persecution
1. Acts of persecution within the meaning of article 1 A of
the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to
constitute a severe violation of basic human rights, in particular
the rights from which derogation cannot be made
under Article 15(2) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms; or
30.9.2004L 304/16 Official Journal of the European UnionEN
(b) be an accumulation of various measures, including violations
of human rights which is sufficiently severe as to
affect an individual in a similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter
alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual
violence;
(b) legal, administrative, police, and/or judicial measures which
are in themselves discriminatory or which are implemented
in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or
discriminatory;
(d) denial of judicial redress resulting in a disproportionate or
discriminatory punishment;
(e) prosecution or punishment for refusal to perform military
service in a conflict, where performing military service
would include crimes or acts falling under the exclusion
clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.
3. In accordance with Article 2(c), there must be a connection
between the reasons mentioned in Article 10 and the acts
of persecution as qualified in paragraph 1.
Article 10
Reasons for persecution
1. Member States shall take the following elements into
account when assessing the reasons for persecution:
(a) the concept of race shall in particular include considerations
of colour, descent, or membership of a particular
ethnic group;
(b) the concept of religion shall in particular include the
holding of theistic, non-theistic and atheistic beliefs, the
participation in, or abstention from, formal worship in
private or in public, either alone or in community with
others, other religious acts or expressions of view, or forms
of personal or communal conduct based on or mandated
by any religious belief;
(c) the concept of nationality shall not be confined to citizenship
or lack thereof but shall in particular include membership
of a group determined by its cultural, ethnic, or
linguistic identity, common geographical or political origins
or its relationship with the population of another State;
(d) a group shall be considered to form a particular social
group where in particular:
— members of that group share an innate characteristic,
or a common background that cannot be changed, or
share a characteristic or belief that is so fundamental to
identity or conscience that a person should not be
forced to renounce it, and
— that group has a distinct identity in the relevant
country, because it is perceived as being different by the
surrounding society;
depending on the circumstances in the country of origin, a
particular social group might include a group based on a
common characteristic of sexual orientation. Sexual orientation
cannot be understood to include acts considered to
be criminal in accordance with national law of the Member
States: Gender related aspects might be considered, without
by themselves alone creating a presumption for the applicability
of this Article;
(e) the concept of political opinion shall in particular include
the holding of an opinion, thought or belief on a matter
related to the potential actors of persecution mentioned in
Article 6 and to their policies or methods, whether or not
that opinion, thought or belief has been acted upon by the
applicant.
2. When assessing if an applicant has a well-founded fear of
being persecuted it is immaterial whether the applicant actually
possesses the racial, religious, national, social or political characteristic
which attracts the persecution, provided that such a
characteristic is attributed to the applicant by the actor of
persecution.
Article 11
Cessation
1. A third country national or a stateless person shall cease
to be a refugee, if he or she:
(a) has voluntarily re-availed himself or herself of the protection
of the country of nationality; or
(b) having lost his or her nationality, has voluntarily reacquired
it; or
(c) has acquired a new nationality, and enjoys the protection
of the country of his or her new nationality; or
(d) has voluntarily re-established himself or herself in the
country which he or she left or outside which he or she
remained owing to fear of persecution; or
(e) can no longer, because the circumstances in connection
with which he or she has been recognised as a refugee have
ceased to exist, continue to refuse to avail himself or herself
of the protection of the country of nationality;
(f) being a stateless person with no nationality, he or she is
able, because the circumstances in connection with which
he or she has been recognised as a refugee have ceased to
exist, to return to the country of former habitual residence.
2. In considering points (e) and (f) of paragraph 1, Member
States shall have regard to whether the change of circumstances
is of such a significant and non-temporary nature that the refugee's
fear of persecution can no longer be regarded as well-
founded.
30.9.2004 L 304/17Official Journal of the European UnionEN
Article 12
Exclusion
1. A third country national or a stateless person is excluded
from being a refugee, if:
(a) he or she falls within the scope of Article 1 D of the
Geneva Convention, relating to protection or assistance
from organs or agencies of the United Nations other than
the United Nations High Commissioner for Refugees. When
such protection or assistance has ceased for any reason,
without the position of such persons being definitely settled
in accordance with the relevant resolutions adopted by the
General Assembly of the United Nations, these persons
shall ipso facto be entitled to the benefits of this Directive;
(b) he or she is recognised by the competent authorities of the
country in which he or she has taken residence as having
the rights and obligations which are attached to the possession
of the nationality of that country; or rights and obligations
equivalent to those.
2. A third country national or a stateless person is excluded
from being a refugee where there are serious reasons for
considering that:
(a) he or she has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in
respect of such crimes;
(b) he or she has committed a serious non-political crime
outside the country of refuge prior to his or her admission
as a refugee; which means the time of issuing a residence
permit based on the granting of refugee status; particularly
cruel actions, even if committed with an allegedly political
objective, may be classified as serious non-political crimes;
(c) he or she has been guilty of acts contrary to the purposes
and principles of the United Nations as set out in the
Preamble and Articles 1 and 2 of the Charter of the United
Nations.
3. Paragraph 2 applies to persons who instigate or otherwise
participate in the commission of the crimes or acts mentioned
therein.
CHAPTER IV
REFUGEE STATUS
Article 13
Granting of refugee status
Member States shall grant refugee status to a third country
national or a stateless person, who qualifies as a refugee in
accordance with Chapters II and III.
Article 14
Revocation of, ending of or refusal to renew refugee
status
1. Concerning applications for international protection filed
after the entry into force of this Directive, Member States shall
revoke, end or refuse to renew the refugee status of a third
country national or a stateless person granted by a governmental,
administrative, judicial or quasi-judicial body, if he or
she has ceased to be a refugee in accordance with Article 11.
2. Without prejudice to the duty of the refugee in accordance
with Article 4(1) to disclose all relevant facts and provide
all relevant documentation at his/her disposal, the Member
State, which has granted refugee status, shall on an individual
basis demonstrate that the person concerned has ceased to be
or has never been a refugee in accordance with paragraph 1 of
this Article.
3. Member States shall revoke, end or refuse to renew the
refugee status of a third country national or a stateless person,
if, after he or she has been granted refugee status, it is established
by the Member State concerned that:
(a) he or she should have been or is excluded from being a
refugee in accordance with Article 12;
(b) his or her misrepresentation or omission of facts, including
the use of false documents, were decisive for the granting
of refugee status.
4. Member States may revoke, end or refuse to renew the
status granted to a refugee by a governmental, administrative,
judicial or quasi-judicial body, when:
(a) there are reasonable grounds for regarding him or her as a
danger to the security of the Member State in which he or
she is present;
(b) he or she, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community
of that Member State.
5. In situations described in paragraph 4, Member States
may decide not to grant status to a refugee, where such a decision
has not yet been taken.
6. Persons to whom paragraphs 4 or 5 apply are entitled to
rights set out in or similar to those set out in Articles 3, 4, 16,
22, 31 and 32 and 33 of the Geneva Convention in so far as
they are present in the Member State.
30.9.2004L 304/18 Official Journal of the European UnionEN
CHAPTER V
QUALIFICATION FOR SUBSIDIARY PROTECTION
Article 15
Serious harm
Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment
of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by
reason of indiscriminate violence in situations of international
or internal armed conflict.
Article 16
Cessation
1. A third country national or a stateless person shall cease
to be eligible for subsidiary protection when the circumstances
which led to the granting of subsidiary protection status have
ceased to exist or have changed to such a degree that protection
is no longer required.
2. In applying paragraph 1, Member States shall have regard
to whether the change of circumstances is of such a significant
and non-temporary nature that the person eligible for
subsidiary protection no longer faces a real risk of serious
harm.
Article 17
Exclusion
1. A third country national or a stateless person is excluded
from being eligible for subsidiary protection where there are
serious reasons for considering that:
(a) he or she has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in
respect of such crimes;
(b) he or she has committed a serious crime;
(c) he or she has been guilty of acts contrary to the purposes
and principles of the United Nations as set out in the
Preamble and Articles 1 and 2 of the Charter of the United
Nations;
(d) he or she constitutes a danger to the community or to the
security of the Member State in which he or she is present.
2. Paragraph 1 applies to persons who instigate or otherwise
participate in the commission of the crimes or acts mentioned
therein.
3. Member States may exclude a third country national or a
stateless person from being eligible for subsidiary protection, if
he or she prior to his or her admission to the Member State
has committed one or more crimes, outside the scope of paragraph
1, which would be punishable by imprisonment, had
they been committed in the Member State concerned, and if he
or she left his or her country of origin solely in order to avoid
sanctions resulting from these crimes.
CHAPTER VI
SUBSIDIARY PROTECTION STATUS
Article 18
Granting of subsidiary protection status
Member States shall grant subsidiary protection status to a
third country national or a stateless person eligible for
subsidiary protection in accordance with Chapters II and V.
Article 19
Revocation of, ending of or refusal to renew subsidiary
protection status
1. Concerning applications for international protection filed
after the entry into force of this Directive, Member States shall
revoke, end or refuse to renew the subsidiary protection status
of a third country national or a stateless person granted by a
governmental, administrative, judicial or quasi-judicial body, if
he or she has ceased to be eligible for subsidiary protection in
accordance with Article 16.
2. Member States may revoke, end or refuse to renew the
subsidiary protection status of a third country national or a
stateless person granted by a governmental, administrative,
judicial or quasi-judicial body, if after having been granted
subsidiary protection status, he or she should have been
excluded from being eligible for subsidiary protection in
accordance with Article 17(3).
3. Member States shall revoke, end or refuse to renew the
subsidiary protection status of a third country national or a
stateless person, if:
(a) he or she, after having been granted subsidiary protection
status, should have been or is excluded from being eligible
for subsidiary protection in accordance with Article 17(1)
and (2);
(b) his or her misrepresentation or omission of facts, including
the use of false documents, were decisive for the granting
of subsidiary protection status.
30.9.2004 L 304/19Official Journal of the European UnionEN
4. Without prejudice to the duty of the third country
national or stateless person in accordance with Article 4(1) to
disclose all relevant facts and provide all relevant documentation
at his/her disposal, the Member State, which has granted
the subsidiary protection status, shall on an individual basis
demonstrate that the person concerned has ceased to be or is
not eligible for subsidiary protection in accordance with paragraphs
1, 2 and 3 of this Article.
CHAPTER VII
CONTENT OF INTERNATIONAL PROTECTION
Article 20
General rules
1. This Chapter shall be without prejudice to the rights laid
down in the Geneva Convention.
2. This Chapter shall apply both to refugees and persons
eligible for subsidiary protection unless otherwise indicated.
3. When implementing this Chapter, Member States shall
take into account the specific situation of vulnerable persons
such as minors, unaccompanied minors, disabled people,
elderly people, pregnant women, single parents with minor
children and persons who have been subjected to torture, rape
or other serious forms of psychological, physical or sexual
violence.
4. Paragraph 3 shall apply only to persons found to have
special needs after an individual evaluation of their situation.
5. The best interest of the child shall be a primary consideration
for Member States when implementing the provisions of
this Chapter that involve minors.
6. Within the limits set out by the Geneva Convention,
Member States may reduce the benefits of this Chapter, granted
to a refugee whose refugee status has been obtained on the
basis of activities engaged in for the sole or main purpose of
creating the necessary conditions for being recognised as a
refugee.
7. Within the limits set out by international obligations of
Member States, Member States may reduce the benefits of this
Chapter, granted to a person eligible for subsidiary protection,
whose subsidiary protection status has been obtained on the
basis of activities engaged in for the sole or main purpose of
creating the necessary conditions for being recognised as a
person eligible for subsidiary protection.
Article 21
Protection from refoulement
1. Member States shall respect the principle of non-refoulement
in accordance with their international obligations.
2. Where not prohibited by the international obligations
mentioned in paragraph 1, Member States may refoule a
refugee, whether formally recognised or not, when:
(a) there are reasonable grounds for considering him or her as
a danger to the security of the Member State in which he
or she is present; or
(b) he or she, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community
of that Member State.
3. Member States may revoke, end or refuse to renew or to
grant the residence permit of (or to) a refugee to whom paragraph
2 applies.
Article 22
Information
Member States shall provide persons recognised as being in
need of international protection, as soon as possible after the
respective protection status has been granted, with access to
information, in a language likely to be understood by them, on
the rights and obligations relating to that status.
Article 23
Maintaining family unity
1. Member States shall ensure that family unity can be main-
tained.
2. Member States shall ensure that family members of the
beneficiary of refugee or subsidiary protection status, who do
not individually qualify for such status, are entitled to claim the
benefits referred to in Articles 24 to 34, in accordance with
national procedures and as far as it is compatible with the
personal legal status of the family member.
In so far as the family members of beneficiaries of subsidiary
protection status are concerned, Member States may define the
conditions applicable to such benefits.
In these cases, Member States shall ensure that any benefits
provided guarantee an adequate standard of living.
3. Paragraphs 1 and 2 are not applicable where the family
member is or would be excluded from refugee or subsidiary
protection status pursuant to Chapters III and V.
4. Notwithstanding paragraphs 1 and 2, Member States may
refuse, reduce or withdraw the benefits referred therein for
reasons of national security or public order.
30.9.2004L 304/20 Official Journal of the European UnionEN
5. Member States may decide that this Article also applies to
other close relatives who lived together as part of the family at
the time of leaving the country of origin, and who were wholly
or mainly dependent on the beneficiary of refugee or subsidiary
protection status at that time.
Article 24
Residence permits
1. As soon as possible after their status has been granted,
Member States shall issue to beneficiaries of refugee status a
residence permit which must be valid for at least three years
and renewable unless compelling reasons of national security
or public order otherwise require, and without prejudice to
Article 21(3).
Without prejudice to Article 23(1), the residence permit to be
issued to the family members of the beneficiaries of refugee
status may be valid for less than three years and renewable.
2. As soon as possible after the status has been granted,
Member States shall issue to beneficiaries of subsidiary protection
status a residence permit which must be valid for at least
one year and renewable, unless compelling reasons of national
security or public order otherwise require.
Article 25
Travel document
1. Member States shall issue to beneficiaries of refugee
status travel documents in the form set out in the Schedule to
the Geneva Convention, for the purpose of travel outside
their territory unless compelling reasons of national security or
public order otherwise require.
2. Member States shall issue to beneficiaries of subsidiary
protection status who are unable to obtain a national passport,
documents which enable them to travel, at least when serious
humanitarian reasons arise that require their presence in
another State, unless compelling reasons of national security or
public order otherwise require.
Article 26
Access to employment
1. Member States shall authorise beneficiaries of refugee
status to engage in employed or self-employed activities subject
to rules generally applicable to the profession and to the public
service, immediately after the refugee status has been granted.
2. Member States shall ensure that activities such as employment-related
education opportunities for adults, vocational
training and practical workplace experience are offered to beneficiaries
of refugee status, under equivalent conditions as
nationals.
3. Member States shall authorise beneficiaries of subsidiary
protection status to engage in employed or self-employed activities
subject to rules generally applicable to the profession and
to the public service immediately after the subsidiary protection
status has been granted. The situation of the labour market in
the Member States may be taken into account, including for
possible prioritisation of access to employment for a limited
period of time to be determined in accordance with national
law. Member States shall ensure that the beneficiary of
subsidiary protection status has access to a post for which the
beneficiary has received an offer in accordance with national
rules on prioritisation in the labour market.
4. Member States shall ensure that beneficiaries of subsidiary
protection status have access to activities such as employmentrelated
education opportunities for adults, vocational training
and practical workplace experience, under conditions to be
decided by the Member States.
5. The law in force in the Member States applicable to
remuneration, access to social security systems relating to
employed or self-employed activities and other conditions of
employment shall apply.
Article 27
Access to education
1. Member States shall grant full access to the education
system to all minors granted refugee or subsidiary protection
status, under the same conditions as nationals.
2. Member States shall allow adults granted refugee or
subsidiary protection status access to the general education
system, further training or retraining, under the same conditions
as third country nationals legally resident.
3. Member States shall ensure equal treatment between
beneficiaries of refugee or subsidiary protection status and
nationals in the context of the existing recognition procedures
for foreign diplomas, certificates and other evidence of formal
qualifications.
Article 28
Social welfare
1. Member States shall ensure that beneficiaries of refugee
or subsidiary protection status receive, in the Member State
that has granted such statuses, the necessary social assistance,
as provided to nationals of that Member State.
30.9.2004 L 304/21Official Journal of the European UnionEN
2. By exception to the general rule laid down in paragraph 1,
Member States may limit social assistance granted to beneficiaries
of subsidiary protection status to core benefits which will
then be provided at the same levels and under the same eligibility
conditions as nationals.
Article 29
Health care
1. Member States shall ensure that beneficiaries of refugee
or subsidiary protection status have access to health care under
the same eligibility conditions as nationals of the Member State
that has granted such statuses.
2. By exception to the general rule laid down in paragraph 1,
Member States may limit health care granted to beneficiaries of
subsidiary protection to core benefits which will then be
provided at the same levels and under the same eligibility
conditions as nationals.
3. Member States shall provide, under the same eligibility
conditions as nationals of the Member State that has granted
the status, adequate health care to beneficiaries of refugee or
subsidiary protection status who have special needs, such as
pregnant women, disabled people, persons who have undergone
torture, rape or other serious forms of psychological,
physical or sexual violence or minors who have been victims of
any form of abuse, neglect, exploitation, torture, cruel,
inhuman and degrading treatment or who have suffered from
armed conflict.
Article 30
Unaccompanied minors
1. As soon as possible after the granting of refugee or
subsidiary protection status Member States shall take the necessary
measures, to ensure the representation of unaccompanied
minors by legal guardianship or, where necessary, by an organisation
responsible for the care and well-being of minors, or
by any other appropriate representation including that based
on legislation or Court order.
2. Member States shall ensure that the minor's needs are
duly met in the implementation of this Directive by the
appointed guardian or representative. The appropriate authorities
shall make regular assessments.
3. Member States shall ensure that unaccompanied minors
are placed either:
(a) with adult relatives; or
(b) with a foster family; or
(c) in centres specialised in accommodation for minors; or
(d) in other accommodation suitable for minors.
In In this context, the views of the child shall be taken into
account in accordance with his or her age and degree of
maturity.
4. As far as possible, siblings shall be kept together, taking
into account the best interests of the minor concerned and, in
particular, his or her age and degree of maturity. Changes of
residence of unaccompanied minors shall be limited to a
minimum.
5. Member States, protecting the unaccompanied minor's
best interests, shall endeavour to trace the members of the
minor's family as soon as possible. In cases where there may be
a threat to the life or integrity of the minor or his or her close
relatives, particularly if they have remained in the country of
origin, care must be taken to ensure that the collection, processing
and circulation of information concerning those persons is
undertaken on a confidential basis.
6. Those working with unaccompanied minors shall have
had or receive appropriate training concerning their needs.
Article 31
Access to accommodation
The Member States shall ensure that beneficiaries of refugee or
subsidiary protection status have access to accommodation
under equivalent conditions as other third country nationals
legally resident in their territories.
Article 32
Freedom of movement within the Member State
Member States shall allow freedom of movement within
their territory to beneficiaries of refugee or subsidiary protection
status, under the same conditions and restrictions as those
provided for other third country nationals legally resident in
their territories.
Article 33
Access to integration facilities
1. In order to facilitate the integration of refugees into
society, Member States shall make provision for integration
programmes which they consider to be appropriate or create
pre-conditions which guarantee access to such programmes.
2. Where it is considered appropriate by Member States,
beneficiaries of subsidiary protection status shall be granted
access to integration programmes.
Article 34
Repatriation
Member States may provide assistance to beneficiaries of
refugee or subsidiary protection status who wish to repatriate.
30.9.2004L 304/22 Official Journal of the European UnionEN
CHAPTER VIII
ADMINISTRATIVE COOPERATION
Article 35
Cooperation
Member States shall each appoint a national contact point,
whose address they shall communicate to the Commission,
which shall communicate it to the other Member States.
Member States shall, in liaison with the Commission, take all
appropriate measures to establish direct cooperation and an
exchange of information between the competent authorities.
Article 36
Staff
Member States shall ensure that authorities and other organisations
implementing this Directive have received the necessary
training and shall be bound by the confidentiality principle, as
defined in the national law, in relation to any information they
obtain in the course of their work.
CHAPTER IX
FINAL PROVISIONS
Article 37
Reports
1. By 10 April 2008, the Commission shall report to the
European Parliament and the Council on the application of this
Directive and shall propose any amendments that are necessary.
These proposals for amendments shall be made by way of
priority in relation to Articles 15, 26 and 33. Member States
shall send the Commission all the information that is appropriate
for drawing up that report by 10 October 2007.
2. After presenting the report, the Commission shall report
to the European Parliament and the Council on the application
of this Directive at least every five years.
Article 38
Transposition
1. The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with
this Directive before 10 October 2006. They shall forthwith
inform the Commission thereof.
When the Member States adopt those measures, they shall
contain a reference to this Directive or shall be accompanied
by such a 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 provisions of national law which they adopt in the
field covered by this Directive.
Article 39
Entry into force
This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union.
Article 40
Addressees
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Luxembourg, 29 April 2004.
For the Council
The President
M. McDOWELL
30.9.2004 L 304/23Official Journal of the European UnionEN
COUNCIL DIRECTIVE 2005/85/EC
of 1 December 2005
on minimum standards on procedures in Member States for granting and withdrawing refugee
status
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular point (1)(d) of the first
paragraph of Article 63 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the European Economic and
Social Committee (3),
Whereas:
(1) A common policy on asylum, including a Common
European Asylum System, is a constituent part of the
European Union’s objective of establishing progressively
an area of freedom, security and justice open to those
who, forced by circumstances, legitimately seek
protection in the Community.
(2) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, agreed to work towards
establishing a Common European Asylum System, based
on the full and inclusive application of the Geneva
Convention of 28 July 1951 relating to the status of
refugees, as amended by the New York Protocol of 31
January 1967 (Geneva Convention), thus affirming the
principle of non-refoulement and ensuring that nobody
is sent back to persecution.
(3) The Tampere Conclusions provide that a Common
European Asylum System should include, in the short
term, common standards for fair and efficient asylum
procedures in the Member States and, in the longer
term, Community rules leading to a common asylum
procedure in the European Community.
(4) The minimum standards laid down in this Directive on
procedures in Member States for granting or withdrawing
refugee status are therefore a first measure on asylum
procedures.
(5) The main objective of this Directive is to introduce a
minimum framework in the Community on procedures
for granting and withdrawing refugee status.
(6) The approximation of rules on the procedures for
granting and withdrawing refugee status should help to
limit the secondary movements of applicants for asylum
between Member States, where such movement would be
caused by differences in legal frameworks.
(7) It is in the very nature of minimum standards that
Member States should have the power to introduce or
maintain more favourable provisions for third country
nationals or stateless persons who ask for international
protection from a Member State, where such a request is
understood to be on the grounds that the person
concerned is a refugee within the meaning of Article
1(A) of the Geneva Convention.
(8) This Directive respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
(9) With respect to the treatment of persons falling within
the scope of this Directive, Member States are bound by
obligations under instruments of international law to
which they are party and which prohibit discrimination.
(10) It is essential that decisions on all applications for asylum
be taken on the basis of the facts and, in the first
instance, by authorities whose personnel has the appropriate
knowledge or receives the necessary training in the
field of asylum and refugee matters.
(11) It is in the interest of both Member States and applicants
for asylum to decide as soon as possible on applications
for asylum. The organisation of the processing of applications
for asylum should be left to the discretion of
Member States, so that they may, in accordance with
their national needs, prioritise or accelerate the
processing of any application, taking into account the
standards in this Directive.
EN13.12.2005 Official Journal of the European Union L 326/13
(1) OJ C 62, 27.2.2001, p. 231 and OJ C 291, 26.11.2002, p. 143.
(2) OJ C 77, 28.3.2002, p. 94.
(3) OJ C 193, 10.7.2001, p. 77. Opinion delivered following noncompulsory
consultation.
(12) The notion of public order may cover a conviction for
committing a serious crime.
(13) In the interests of a correct recognition of those persons
in need of protection as refugees within the meaning of
Article 1 of the Geneva Convention, every applicant
should, subject to certain exceptions, have an effective
access to procedures, the opportunity to cooperate and
properly communicate with the competent authorities so
as to present the relevant facts of his/her case and
sufficient procedural guarantees to pursue his/her case
throughout all stages of the procedure. Moreover, the
procedure in which an application for asylum is
examined should normally provide an applicant at least
with the right to stay pending a decision by the determining
authority, access to the services of an interpreter
for submitting his/her case if interviewed by the authorities,
the opportunity to communicate with a representative
of the United Nations High Commissioner for
Refugees (UNHCR) or with any organisation working
on its behalf, the right to appropriate notification of a
decision, a motivation of that decision in fact and in law,
the opportunity to consult a legal adviser or other counsellor,
and the right to be informed of his/her legal
position at decisive moments in the course of the
procedure, in a language he/she can reasonably be
supposed to understand.
(14) In addition, specific procedural guarantees for unaccompanied
minors should be laid down on account of their
vulnerability. In this context, the best interests of the
child should be a primary consideration of Member
States.
(15) Where an applicant makes a subsequent application
without presenting new evidence or arguments, it
would be disproportionate to oblige Member States to
carry out a new full examination procedure. In these
cases, Member States should have a choice of
procedure involving exceptions to the guarantees
normally enjoyed by the applicant.
(16) Many asylum applications are made at the border or in a
transit zone of a Member State prior to a decision on the
entry of the applicant. Member States should be able to
keep existing procedures adapted to the specific situation
of these applicants at the border. Common rules should
be defined on possible exceptions made in these circumstances
to the guarantees normally enjoyed by applicants.
Border procedures should mainly apply to those
applicants who do not meet the conditions for entry
into the territory of the Member States.
(17) A key consideration for the well-foundedness of an
asylum application is the safety of the applicant in
his/her country of origin. Where a third country can be
regarded as a safe country of origin, Member States
should be able to designate it as safe and presume its
safety for a particular applicant, unless he/she presents
serious counter-indications.
(18) Given the level of harmonisation achieved on the qualification
of third country nationals and stateless persons
as refugees, common criteria for designating third
countries as safe countries of origin should be estab-
lished.
(19) Where the Council has satisfied itself that those criteria
are met in relation to a particular country of origin, and
has consequently included it in the minimum common
list of safe countries of origin to be adopted pursuant to
this Directive, Member States should be obliged to
consider applications of persons with the nationality of
that country, or of stateless persons formerly habitually
resident in that country, on the basis of the rebuttable
presumption of the safety of that country. In the light of
the political importance of the designation of safe
countries of origin, in particular in view of the implications
of an assessment of the human rights situation in
a country of origin and its implications for the policies of
the European Union in the field of external relations, the
Council should take any decisions on the establishment
or amendment of the list, after consultation of the
European Parliament.
(20) It results from the status of Bulgaria and Romania as
candidate countries for accession to the European
Union and the progress made by these countries
towards membership that they should be regarded as
constituting safe countries of origin for the purposes of
this Directive until the date of their accession to the
European Union.
(21) The designation of a third country as a safe country of
origin for the purposes of this Directive cannot establish
an absolute guarantee of safety for nationals of that
country. By its very nature, the assessment underlying
the designation can only take into account the general
civil, legal and political circumstances in that country and
whether actors of persecution, torture or inhuman or
degrading treatment or punishment are subject to
sanction in practice when found liable in the country
concerned. For this reason, it is important that, where
an applicant shows that there are serious reasons to
consider the country not to be safe in his/her particular
circumstances, the designation of the country as safe can
no longer be considered relevant for him/her.
ENL 326/14 Official Journal of the European Union 13.12.2005
(22) Member States should examine all applications on the
substance, i.e. assess whether the applicant in question
qualifies as a refugee in accordance with Council
Directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third
country nationals or stateless persons as refugees or as
persons who otherwise need international protection and
the content of the protection granted (1), except where
the present Directive provides otherwise, in particular
where it can be reasonably assumed that another
country would do the examination or provide sufficient
protection. In particular, Member States should not be
obliged to assess the substance of an asylum application
where a first country of asylum has granted the applicant
refugee status or otherwise sufficient protection and the
applicant will be readmitted to this country.
(23) Member States should also not be obliged to assess the
substance of an asylum application where the applicant,
due to a connection to a third country as defined by
national law, can reasonably be expected to seek
protection in that third country. Member States should
only proceed on this basis where this particular applicant
would be safe in the third country concerned. In order to
avoid secondary movements of applicants, common principles
for the consideration or designation by Member
States of third countries as safe should be established.
(24) Furthermore, with respect to certain European third
countries, which observe particularly high human rights
and refugee protection standards, Member States should
be allowed to not carry out, or not to carry out full
examination of asylum applications regarding applicants
who enter their territory from such European third
countries. Given the potential consequences for the
applicant of a restricted or omitted examination, this
application of the safe third country concept should be
restricted to cases involving third countries with respect
to which the Council has satisfied itself that the high
standards for the safety of the third country concerned,
as set out in this Directive, are fulfilled. The Council
should take decisions in this matter after consultation
of the European Parliament.
(25) It follows from the nature of the common standards
concerning both safe third country concepts as set out
in this Directive, that the practical effect of the concepts
depends on whether the third country in question
permits the applicant in question to enter its territory.
(26) With respect to the withdrawal of refugee status, Member
States should ensure that persons benefiting from refugee
status are duly informed of a possible reconsideration of
their status and have the opportunity to submit their
point of view before the authorities can take a
motivated decision to withdraw their status. However,
dispensing with these guarantees should be allowed
where the reasons for the cessation of the refugee
status is not related to a change of the conditions on
which the recognition was based.
(27) It reflects a basic principle of Community law that the
decisions taken on an application for asylum and on the
withdrawal of refugee status are subject to an effective
remedy before a court or tribunal within the meaning of
Article 234 of the Treaty. The effectiveness of the
remedy, also with regard to the examination of the
relevant facts, depends on the administrative and
judicial system of each Member State seen as a whole.
(28) In accordance with Article 64 of the Treaty, this Directive
does not affect the exercise of the responsibilities
incumbent upon Member States with regard to the maintenance
of law and order and the safeguarding of internal
security.
(29) This Directive does not deal with procedures governed by
Council Regulation (EC) No 343/2003 of 18 February
2003 establishing the criteria and mechanisms for determining
the Member State responsible for examining an
asylum application lodged in one of the Member States
by a third-country national (2).
(30) The implementation of this Directive should be evaluated
at regular intervals not exceeding two years.
(31) Since the objective of this Directive, namely to establish
minimum standards on procedures in Member States for
granting and withdrawing refugee status cannot be sufficiently
attained by the Member States and can therefore,
by reason of the scale and 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 Directive does not go beyond what is necessary in
order to achieve this objective.
(32) 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, by letter of 24 January 2001, its
wish to take part in the adoption and application of this
Directive.
EN13.12.2005 Official Journal of the European Union L 326/15
(1) OJ L 304, 30.9.2004, p. 12. (2) OJ L 50, 25.2.2003, p. 1.
(33) 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, by letter of 14 February 2001, its wish to
take part in the adoption and application of this
Directive.
(34) 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 Directive and is not bound by it or
subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Purpose
The purpose of this Directive is to establish minimum standards
on procedures in Member States for granting and withdrawing
refugee status.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘Geneva Convention’ means the Convention of 28 July
1951 relating to the status of refugees, as amended by
the New York Protocol of 31 January 1967;
(b) ‘application’ or ‘application for asylum’ means an application
made by a third country national or stateless
person which can be understood as a request for international
protection from a Member State under the Geneva
Convention. Any application for international protection is
presumed to be an application for asylum, unless the person
concerned explicitly requests another kind of protection that
can be applied for separately;
(c) ‘applicant’ or ‘applicant for asylum’ means a third country
national or stateless person who has made an application
for asylum in respect of which a final decision has not yet
been taken;
(d) ‘final decision’ means a decision on whether the third
country national or stateless person be granted refugee
status by virtue of Directive 2004/83/EC and which is no
longer subject to a remedy within the framework of Chapter
V of this Directive irrespective of whether such remedy has
the effect of allowing applicants to remain in the Member
States concerned pending its outcome, subject to Annex III
to this Directive;
(e) ‘determining authority’ means any quasi-judicial or administrative
body in a Member State responsible for examining
applications for asylum and competent to take decisions at
first instance in such cases, subject to Annex I;
(f) ‘refugee’ means a third country national or a stateless person
who fulfils the requirements of Article 1 of the Geneva
Convention as set out in Directive 2004/83/EC;
(g) ‘refugee status’ means the recognition by a Member State of
a third country national or stateless person as a refugee;
(h) ‘unaccompanied minor’ means a person below the age of 18
who arrives in the territory of the Member States unaccompanied
by an adult responsible for him/her whether by law
or by custom, and for as long as he/she is not effectively
taken into the care of such a person; it includes a minor
who is left unaccompanied after he/she has entered the
territory of the Member States;
(i) ‘representative’ means a person acting on behalf of an organisation
representing an unaccompanied minor as legal
guardian, a person acting on behalf of a national organisation
which is responsible for the care and well-being of
minors, or any other appropriate representation appointed
to ensure his/her best interests;
(j) ‘withdrawal of refugee status’ means the decision by a
competent authority to revoke, end or refuse to renew the
refugee status of a person in accordance with Directive
2004/83/EC;
(k) ‘remain in the Member State’ means to remain in the
territory, including at the border or in transit zones, of
the Member State in which the application for asylum has
been made or is being examined.
Article 3
Scope
1. This Directive shall apply to all applications for asylum
made in the territory, including at the border or in the transit
zones of the Member States, and to the withdrawal of refugee
status.
2. This Directive shall not apply in cases of requests for
diplomatic or territorial asylum submitted to representations
of Member States.
ENL 326/16 Official Journal of the European Union 13.12.2005
3. Where Member States employ or introduce a procedure in
which asylum applications are examined both as applications on
the basis of the Geneva Convention and as applications for
other kinds of international protection given under the circumstances
defined by Article 15 of Directive 2004/83/EC, they
shall apply this Directive throughout their procedure.
4. Moreover, Member States may decide to apply this
Directive in procedures for deciding on applications for any
kind of international protection.
Article 4
Responsible authorities
1. Member States shall designate for all procedures a determining
authority which will be responsible for an appropriate
examination of the applications in accordance with this
Directive, in particular Articles 8(2) and 9.
In accordance with Article 4(4) of Regulation (EC) No
343/2003, applications for asylum made in a Member State
to the authorities of another Member State carrying out immigration
controls there shall be dealt with by the Member State
in whose territory the application is made.
2. However, Member States may provide that another
authority is responsible for the purposes of:
(a) processing cases in which it is considered to transfer the
applicant to another State according to the rules establishing
criteria and mechanisms for determining which State is
responsible for considering an application for asylum,
until the transfer takes place or the requested State has
refused to take charge of or take back the applicant;
(b) taking a decision on the application in the light of national
security provisions, provided the determining authority is
consulted prior to this decision as to whether the
applicant qualifies as a refugee by virtue of Directive
2004/83/EC;
(c) conducting a preliminary examination pursuant to Article
32, provided this authority has access to the applicant’s file
regarding the previous application;
(d) processing cases in the framework of the procedures
provided for in Article 35(1);
(e) refusing permission to enter in the framework of the
procedure provided for in Article 35(2) to (5), subject to
the conditions and as set out therein;
(f) establishing that an applicant is seeking to enter or has
entered into the Member State from a safe third country
pursuant to Article 36, subject to the conditions and as set
out in that Article.
3. Where authorities are designated in accordance with
paragraph 2, Member States shall ensure that the personnel of
such authorities have the appropriate knowledge or receive the
necessary training to fulfil their obligations when implementing
this Directive.
Article 5
More favourable provisions
Member States may introduce or maintain more favourable
standards on procedures for granting and withdrawing refugee
status, insofar as those standards are compatible with this
Directive.
CHAPTER II
BASIC PRINCIPLES AND GUARANTEES
Article 6
Access to the procedure
1. Member States may require that applications for asylum
be made in person and/or at a designated place.
2. Member States shall ensure that each adult having legal
capacity has the right to make an application for asylum on
his/her own behalf.
3. Member States may provide that an application may be
made by an applicant on behalf of his/her dependants. In such
cases Member States shall ensure that dependant adults consent
to the lodging of the application on their behalf, failing which
they shall have an opportunity to make an application on their
own behalf.
Consent shall be requested at the time the application is lodged
or, at the latest, when the personal interview with the
dependant adult is conducted.
4. Member States may determine in national legislation:
(a) the cases in which a minor can make an application on
his/her own behalf;
(b) the cases in which the application of an unaccompanied
minor has to be lodged by a representative as provided
for in Article 17(1)(a);
EN13.12.2005 Official Journal of the European Union L 326/17
(c) the cases in which the lodging of an application for asylum
is deemed to constitute also the lodging of an application
for asylum for any unmarried minor.
5. Member States shall ensure that authorities likely to be
addressed by someone who wishes to make an application for
asylum are able to advise that person how and where he/she
may make such an application and/or may require these authorities
to forward the application to the competent authority.
Article 7
Right to remain in the Member State pending the examination
of the application
1. Applicants shall be allowed to remain in the Member
State, for the sole purpose of the procedure, until the determining
authority has made a decision in accordance with the
procedures at first instance set out in Chapter III. This right to
remain shall not constitute an entitlement to a residence permit.
2. Member States can make an exception only where, in
accordance with Articles 32 and 34, a subsequent application
will not be further examined or where they will surrender or
extradite, as appropriate, a person either to another Member
State pursuant to obligations in accordance with a European
arrest warrant (1) or otherwise, or to a third country, or to
international criminal courts or tribunals.
Article 8
Requirements for the examination of applications
1. Without prejudice to Article 23(4)(i), Member States shall
ensure that applications for asylum are neither rejected nor
excluded from examination on the sole ground that they have
not been made as soon as possible.
2. Member States shall ensure that decisions by the determining
authority on applications for asylum are taken after an
appropriate examination. To that end, Member States shall
ensure that:
(a) applications are examined and decisions are taken individually,
objectively and impartially;
(b) precise and up-to-date information is obtained from various
sources, such as the United Nations High Commissioner for
Refugees (UNHCR), as to the general situation prevailing in
the countries of origin of applicants for asylum and, where
necessary, in countries through which they have transited,
and that such information is made available to the
personnel responsible for examining applications and
taking decisions;
(c) the personnel examining applications and taking decisions
have the knowledge with respect to relevant standards
applicable in the field of asylum and refugee law.
3. The authorities referred to in Chapter V shall, through the
determining authority or the applicant or otherwise, have access
to the general information referred to in paragraph 2(b),
necessary for the fulfilment of their task.
4. Member States may provide for rules concerning the
translation of documents relevant for the examination of appli-
cations.
Article 9
Requirements for a decision by the determining authority
1. Member States shall ensure that decisions on applications
for asylum are given in writing.
2. Member States shall also ensure that, where an application
is rejected, the reasons in fact and in law are stated in the
decision and information on how to challenge a negative
decision is given in writing.
Member States need not state the reasons for not granting
refugee status in a decision where the applicant is granted a
status which offers the same rights and benefits under national
and Community law as the refugee status by virtue of Directive
2004/83/EC. In these cases, Member States shall ensure that the
reasons for not granting refugee status are stated in the
applicant’s file and that the applicant has, upon request,
access to his/her file.
Moreover, Member States need not provide information on how
to challenge a negative decision in writing in conjunction with a
decision where the applicant has been provided with this information
at an earlier stage either in writing or by electronic
means accessible to the applicant.
3. For the purposes of Article 6(3), and whenever the application
is based on the same grounds, Member States may take
one single decision, covering all dependants.
ENL 326/18 Official Journal of the European Union 13.12.2005
(1) Council Framework Decision 2002/584/JHA of 13 June 2002 on
the European arrest warrant and the surrender procedures between
Member States (OJ L 190, 18.7.2002, p. 1).
Article 10
Guarantees for applicants for asylum
1. With respect to the procedures provided for in Chapter III,
Member States shall ensure that all applicants for asylum enjoy
the following guarantees:
(a) they shall be informed in a language which they may
reasonably be supposed to understand of the procedure to
be followed and of their rights and obligations during the
procedure and the possible consequences of not complying
with their obligations and not cooperating with the authorities.
They shall be informed of the time-frame, as well as
the means at their disposal for fulfilling the obligation to
submit the elements as referred to in Article 4 of Directive
2004/83/EC. This information shall be given in time to
enable them to exercise the rights guaranteed in this
Directive and to comply with the obligations described in
Article 11;
(b) they shall receive the services of an interpreter for
submitting their case to the competent authorities
whenever necessary. Member States shall consider it
necessary to give these services at least when the determining
authority calls upon the applicant to be interviewed
as referred to in Articles 12 and 13 and appropriate
communication cannot be ensured without such services.
In this case and in other cases where the competent authorities
call upon the applicant, these services shall be paid for
out of public funds;
(c) they shall not be denied the opportunity to communicate
with the UNHCR or with any other organisation working
on behalf of the UNHCR in the territory of the Member
State pursuant to an agreement with that Member State;
(d) they shall be given notice in reasonable time of the decision
by the determining authority on their application for
asylum. If a legal adviser or other counsellor is legally representing
the applicant, Member States may choose to give
notice of the decision to him/her instead of to the applicant
for asylum;
(e) they shall be informed of the result of the decision by the
determining authority in a language that they may
reasonably be supposed to understand when they are not
assisted or represented by a legal adviser or other counsellor
and when free legal assistance is not available. The information
provided shall include information on how to
challenge a negative decision in accordance with the
provisions of Article 9(2).
2. With respect to the procedures provided for in Chapter V,
Member States shall ensure that all applicants for asylum enjoy
equivalent guarantees to the ones referred to in paragraph 1(b),
(c) and (d) of this Article.
Article 11
Obligations of the applicants for asylum
1. Member States may impose upon applicants for asylum
obligations to cooperate with the competent authorities insofar
as these obligations are necessary for the processing of the
application.
2. In particular, Member States may provide that:
(a) applicants for asylum are required to report to the
competent authorities or to appear before them in person,
either without delay or at a specified time;
(b) applicants for asylum have to hand over documents in their
possession relevant to the examination of the application,
such as their passports;
(c) applicants for asylum are required to inform the competent
authorities of their current place of residence or address and
of any changes thereof as soon as possible. Member States
may provide that the applicant shall have to accept any
communication at the most recent place of residence or
address which he/she indicated accordingly;
(d) the competent authorities may search the applicant and the
items he/she carries with him/her;
(e) the competent authorities may take a photograph of the
applicant; and
(f) the competent authorities may record the applicant’s oral
statements, provided he/she has previously been informed
thereof.
Article 12
Personal interview
1. Before a decision is taken by the determining authority,
the applicant for asylum shall be given the opportunity of a
personal interview on his/her application for asylum with a
person competent under national law to conduct such an
interview.
Member States may also give the opportunity of a personal
interview to each dependant adult referred to in Article 6(3).
Member States may determine in national legislation the cases
in which a minor shall be given the opportunity of a personal
interview.
EN13.12.2005 Official Journal of the European Union L 326/19
2. The personal interview may be omitted where:
(a) the determining authority is able to take a positive decision
on the basis of evidence available; or
(b) the competent authority has already had a meeting with the
applicant for the purpose of assisting him/her with
completing his/her application and submitting the essential
information regarding the application, in terms of Article
4(2) of Directive 2004/83/EC; or
(c) the determining authority, on the basis of a complete examination
of information provided by the applicant, considers
the application to be unfounded in cases where the circumstances
mentioned in Article 23(4)(a), (c), (g), (h) and (j)
apply.
3. The personal interview may also be omitted where it is
not reasonably practicable, in particular where the competent
authority is of the opinion that the applicant is unfit or unable
to be interviewed owing to enduring circumstances beyond
his/her control. When in doubt, Member States may require a
medical or psychological certificate.
Where the Member State does not provide the applicant with
the opportunity for a personal interview pursuant to this
paragraph, or where applicable, to the dependant, reasonable
efforts shall be made to allow the applicant or the dependant
to submit further information.
4. The absence of a personal interview in accordance with
this Article shall not prevent the determining authority from
taking a decision on an application for asylum.
5. The absence of a personal interview pursuant to paragraph
2(b) and (c) and paragraph 3 shall not adversely affect the
decision of the determining authority.
6. Irrespective of Article 20(1), Member States, when
deciding on the application for asylum, may take into
account the fact that the applicant failed to appear for the
personal interview, unless he/she had good reasons for the
failure to appear.
Article 13
Requirements for a personal interview
1. A personal interview shall normally take place without the
presence of family members unless the determining authority
considers it necessary for an appropriate examination to have
other family members present.
2. A personal interview shall take place under conditions
which ensure appropriate confidentiality.
3. Member States shall take appropriate steps to ensure that
personal interviews are conducted under conditions which allow
applicants to present the grounds for their applications in a
comprehensive manner. To that end, Member States shall:
(a) ensure that the person who conducts the interview is sufficiently
competent to take account of the personal or general
circumstances surrounding the application, including the
applicant’s cultural origin or vulnerability, insofar as it is
possible to do so; and
(b) select an interpreter who is able to ensure appropriate
communication between the applicant and the person
who conducts the interview. The communication need not
necessarily take place in the language preferred by the
applicant for asylum if there is another language which
he/she may reasonably be supposed to understand and in
which he/she is able to communicate.
4. Member States may provide for rules concerning the
presence of third parties at a personal interview.
5. This Article is also applicable to the meeting referred to in
Article 12(2)(b).
Article 14
Status of the report of a personal interview in the
procedure
1. Member States shall ensure that a written report is made
of every personal interview, containing at least the essential
information regarding the application, as presented by the
applicant, in terms of Article 4(2) of Directive 2004/83/EC.
2. Member States shall ensure that applicants have timely
access to the report of the personal interview. Where access is
only granted after the decision of the determining authority,
Member States shall ensure that access is possible as soon as
necessary for allowing an appeal to be prepared and lodged in
due time.
3. Member States may request the applicant’s approval of the
contents of the report of the personal interview.
Where an applicant refuses to approve the contents of the
report, the reasons for this refusal shall be entered into the
applicant’s file.
ENL 326/20 Official Journal of the European Union 13.12.2005
The refusal of an applicant to approve the contents of the
report shall not prevent the determining authority from
taking a decision on his/her application.
4. This Article is also applicable to the meeting referred to in
Article 12(2)(b).
Article 15
Right to legal assistance and representation
1. Member States shall allow applicants for asylum the
opportunity, at their own cost, to consult in an effective
manner a legal adviser or other counsellor, admitted or
permitted as such under national law, on matters relating to
their asylum applications.
2. In the event of a negative decision by a determining
authority, Member States shall ensure that free legal assistance
and/or representation be granted on request, subject to the
provisions of paragraph 3.
3. Member States may provide in their national legislation
that free legal assistance and/or representation is granted:
(a) only for procedures before a court or tribunal in accordance
with Chapter V and not for any onward appeals or reviews
provided for under national law, including a rehearing of an
appeal following an onward appeal or review; and/or
(b) only to those who lack sufficient resources; and/or
(c) only to legal advisers or other counsellors specifically
designated by national law to assist and/or represent
applicants for asylum; and/or
(d) only if the appeal or review is likely to succeed.
Member States shall ensure that legal assistance and/or representation
granted under point (d) is not arbitrarily restricted.
4. Rules concerning the modalities for filing and processing
requests for legal assistance and/or representation may be
provided by Member States.
5. Member States may also:
(a) impose monetary and/or time-limits on the provision of free
legal assistance and/or representation, provided that such
limits do not arbitrarily restrict access to legal assistance
and/or representation;
(b) provide that, as regards fees and other costs, the treatment
of applicants shall not be more favourable than the
treatment generally accorded to their nationals in matters
pertaining to legal assistance.
6. Member States may demand to be reimbursed wholly or
partially for any expenses granted if and when the applicant’s
financial situation has improved considerably or if the decision
to grant such benefits was taken on the basis of false information
supplied by the applicant.
Article 16
Scope of legal assistance and representation
1. Member States shall ensure that a legal adviser or other
counsellor admitted or permitted as such under national law,
and who assists or represents an applicant for asylum under the
terms of national law, shall enjoy access to such information in
the applicant’s file as is liable to be examined by the authorities
referred to in Chapter V, insofar as the information is relevant
to the examination of the application.
Member States may make an exception where disclosure of
information or sources would jeopardise national security, the
security of the organisations or person(s) providing the information
or the security of the person(s) to whom the information
relates or where the investigative interests relating to
the examination of applications of asylum by the competent
authorities of the Member States or the international relations
of the Member States would be compromised. In these cases,
access to the information or sources in question shall be
available to the authorities referred to in Chapter V, except
where such access is precluded in cases of national security.
2. Member States shall ensure that the legal adviser or other
counsellor who assists or represents an applicant for asylum has
access to closed areas, such as detention facilities and transit
zones, for the purpose of consulting that applicant. Member
States may only limit the possibility of visiting applicants in
closed areas where such limitation is, by virtue of national
legislation, objectively necessary for the security, public order
or administrative management of the area, or in order to ensure
an efficient examination of the application, provided that access
by the legal adviser or other counsellor is not thereby severely
limited or rendered impossible.
3. Member States may provide rules covering the presence of
legal advisers or other counsellors at all interviews in the
procedure, without prejudice to this Article or to Article
17(1)(b).
4. Member States may provide that the applicant is allowed
to bring with him/her to the personal interview a legal adviser
or other counsellor admitted or permitted as such under
national law.
EN13.12.2005 Official Journal of the European Union L 326/21
Member States may require the presence of the applicant at the
personal interview, even if he/she is represented under the terms
of national law by such a legal adviser or counsellor, and may
require the applicant to respond in person to the questions
asked.
The absence of a legal adviser or other counsellor shall not
prevent the competent authority from conducting the
personal interview with the applicant.
Article 17
Guarantees for unaccompanied minors
1. With respect to all procedures provided for in this
Directive and without prejudice to the provisions of Articles
12 and 14, Member States shall:
(a) as soon as possible take measures to ensure that a representative
represents and/or assists the unaccompanied minor
with respect to the examination of the application. This
representative can also be the representative referred to in
Article 19 of Directive 2003/9/EC of 27 January 2003
laying down minimum standards for the reception of
asylum seekers (1);
(b) ensure that the representative is given the opportunity to
inform the unaccompanied minor about the meaning and
possible consequences of the personal interview and, where
appropriate, how to prepare himself/herself for the personal
interview. Member States shall allow the representative to be
present at that interview and to ask questions or make
comments, within the framework set by the person who
conducts the interview.
Member States may require the presence of the unaccompanied
minor at the personal interview, even if the representative is
present.
2. Member States may refrain from appointing a representative
where the unaccompanied minor:
(a) will in all likelihood reach the age of maturity before a
decision at first instance is taken; or
(b) can avail himself, free of charge, of a legal adviser or other
counsellor, admitted as such under national law to fulfil the
tasks assigned above to the representative; or
(c) is married or has been married.
3. Member States may, in accordance with the laws and
regulations in force on 1 December 2005, also refrain from
appointing a representative where the unaccompanied minor
is 16 years old or older, unless he/she is unable to pursue
his/her application without a representative.
4. Member States shall ensure that:
(a) if an unaccompanied minor has a personal interview on
his/her application for asylum as referred to in Articles
12, 13 and 14, that interview is conducted by a person
who has the necessary knowledge of the special needs of
minors;
(b) an official with the necessary knowledge of the special needs
of minors prepares the decision by the determining
authority on the application of an unaccompanied minor.
5. Member States may use medical examinations to
determine the age of unaccompanied minors within the
framework of the examination of an application for asylum.
In cases where medical examinations are used, Member States
shall ensure that:
(a) unaccompanied minors are informed prior to the examination
of their application for asylum, and in a language
which they may reasonably be supposed to understand, of
the possibility that their age may be determined by medical
examination. This shall include information on the method
of examination and the possible consequences of the result
of the medical examination for the examination of the
application for asylum, as well as the consequences of
refusal on the part of the unaccompanied minor to
undergo the medical examination;
(b) unaccompanied minors and/or their representatives consent
to carry out an examination to determine the age of the
minors concerned; and
(c) the decision to reject an application for asylum from an
unaccompanied minor who refused to undergo this
medical examination shall not be based solely on that
refusal.
The fact that an unaccompanied minor has refused to undergo
such a medical examination shall not prevent the determining
authority from taking a decision on the application for asylum.
ENL 326/22 Official Journal of the European Union 13.12.2005
(1) OJ L 31, 6.2.2003, p. 18.
6. The best interests of the child shall be a primary consideration
for Member States when implementing this Article.
Article 18
Detention
1. Member States shall not hold a person in detention for
the sole reason that he/she is an applicant for asylum.
2. Where an applicant for asylum is held in detention,
Member States shall ensure that there is a possibility of
speedy judicial review.
Article 19
Procedure in case of withdrawal of the application
1. Insofar as Member States provide for the possibility of
explicit withdrawal of the application under national law,
when an applicant for asylum explicitly withdraws his/her application
for asylum, Member States shall ensure that the determining
authority takes a decision to either discontinue the
examination or reject the application.
2. Member States may also decide that the determining
authority can decide to discontinue the examination without
taking a decision. In this case, Member States shall ensure
that the determining authority enters a notice in the applicant’s
file.
Article 20
Procedure in the case of implicit withdrawal or abandonment
of the application
1. When there is reasonable cause to consider that an
applicant for asylum has implicitly withdrawn or abandoned
his/her application for asylum, Member States shall ensure
that the determining authority takes a decision to either
discontinue the examination or reject the application on the
basis that the applicant has not established an entitlement to
refugee status in accordance with Directive 2004/83/EC.
Member States may assume that the applicant has implicitly
withdrawn or abandoned his/her application for asylum in
particular when it is ascertained that:
(a) he/she has failed to respond to requests to provide information
essential to his/her application in terms of Article 4
of Directive 2004/83/EC or has not appeared for a personal
interview as provided for in Articles 12, 13 and 14, unless
the applicant demonstrates within a reasonable time that
his/her failure was due to circumstances beyond his control;
(b) he/she has absconded or left without authorisation the place
where he/she lived or was held, without contacting the
competent authority within a reasonable time, or he/she
has not within a reasonable time complied with reporting
duties or other obligations to communicate.
For the purposes of implementing these provisions, Member
States may lay down time-limits or guidelines.
2. Member States shall ensure that the applicant who reports
again to the competent authority after a decision to discontinue
as referred to in paragraph 1 of this Article is taken, is entitled
to request that his/her case be reopened, unless the request is
examined in accordance with Articles 32 and 34.
Member States may provide for a time-limit after which the
applicant’s case can no longer be re-opened.
Member States shall ensure that such a person is not removed
contrary to the principle of non-refoulement.
Member States may allow the determining authority to take up
the examination at the stage where it was discontinued.
Article 21
The role of UNHCR
1. Member States shall allow the UNHCR:
(a) to have access to applicants for asylum, including those in
detention and in airport or port transit zones;
(b) to have access to information on individual applications for
asylum, on the course of the procedure and on the decisions
taken, provided that the applicant for asylum agrees thereto;
(c) to present its views, in the exercise of its supervisory
responsibilities under Article 35 of the Geneva Convention,
to any competent authorities regarding individual applications
for asylum at any stage of the procedure.
2. Paragraph 1 shall also apply to an organisation which is
working in the territory of the Member State concerned on
behalf of the UNHCR pursuant to an agreement with that
Member State.
EN13.12.2005 Official Journal of the European Union L 326/23
Article 22
Collection of information on individual cases
For the purposes of examining individual cases, Member States
shall not:
(a) directly disclose information regarding individual applications
for asylum, or the fact that an application has
been made, to the alleged actor(s) of persecution of the
applicant for asylum;
(b) obtain any information from the alleged actor(s) of persecution
in a manner that would result in such actor(s) being
directly informed of the fact that an application has been
made by the applicant in question, and would jeopardise the
physical integrity of the applicant and his/her dependants,
or the liberty and security of his/her family members still
living in the country of origin.
CHAPTER III
PROCEDURES AT FIRST INSTANCE
SECTION I
Article 23
Examination procedure
1. Member States shall process applications for asylum in an
examination procedure in accordance with the basic principles
and guarantees of Chapter II.
2. Member States shall ensure that such a procedure is
concluded as soon as possible, without prejudice to an
adequate and complete examination.
Member States shall ensure that, where a decision cannot be
taken within six months, the applicant concerned shall either:
(a) be informed of the delay; or
(b) receive, upon his/her request, information on the time-frame
within which the decision on his/her application is to be
expected. Such information shall not constitute an obligation
for the Member State towards the applicant
concerned to take a decision within that time-frame.
3. Member States may prioritise or accelerate any examination
in accordance with the basic principles and guarantees
of Chapter II, including where the application is likely to be
well-founded or where the applicant has special needs.
4. Member States may also provide that an examination
procedure in accordance with the basic principles and guarantees
of Chapter II be prioritised or accelerated if:
(a) the applicant, in submitting his/her application and
presenting the facts, has only raised issues that are not
relevant or of minimal relevance to the examination of
whether he/she qualifies as a refugee by virtue of
Directive 2004/83/EC; or
(b) the applicant clearly does not qualify as a refugee or for
refugee status in a Member State under Directive
2004/83/EC; or
(c) the application for asylum is considered to be unfounded:
(i) because the applicant is from a safe country of origin
within the meaning of Articles 29, 30 and 31, or
(ii) because the country which is not a Member State, is
considered to be a safe third country for the applicant,
without prejudice to Article 28(1); or
(d) the applicant has misled the authorities by presenting false
information or documents or by withholding relevant
information or documents with respect to his/her identity
and/or nationality that could have had a negative impact
on the decision; or
(e) the applicant has filed another application for asylum
stating other personal data; or
(f) the applicant has not produced information establishing
with a reasonable degree of certainty his/her identity or
nationality, or it is likely that, in bad faith, he/she has
destroyed or disposed of an identity or travel document
that would have helped establish his/her identity or
nationality; or
(g) the applicant has made inconsistent, contradictory,
improbable or insufficient representations which make
his/her claim clearly unconvincing in relation to his/her
having been the object of persecution referred to in
Directive 2004/83/EC; or
(h) the applicant has submitted a subsequent application which
does not raise any relevant new elements with respect to
his/her particular circumstances or to the situation in
his/her country of origin; or
(i) the applicant has failed without reasonable cause to make
his/her application earlier, having had opportunity to do so;
or
ENL 326/24 Official Journal of the European Union 13.12.2005
(j) the applicant is making an application merely in order to
delay or frustrate the enforcement of an earlier or
imminent decision which would result in his/her removal;
or
(k) the applicant has failed without good reason to comply
with obligations referred to in Article 4(1) and (2) of
Directive 2004/83/EC or in Articles11(2)(a) and (b) and
20(1) of this Directive; or
(l) the applicant entered the territory of the Member State
unlawfully or prolonged his/her stay unlawfully and,
without good reason, has either not presented himself/herself
to the authorities and/or filed an application for
asylum as soon as possible, given the circumstances of
his/her entry; or
(m) the applicant is a danger to the national security or public
order of the Member State, or the applicant has been
forcibly expelled for serious reasons of public security
and public order under national law; or
(n) the applicant refuses to comply with an obligation to have
his/her fingerprints taken in accordance with relevant
Community and/or national legislation; or
(o) the application was made by an unmarried minor to whom
Article 6(4)(c) applies, after the application of the parents
or parent responsible for the minor has been rejected and
no relevant new elements were raised with respect to
his/her particular circumstances or to the situation in
his/her country of origin.
Article 24
Specific procedures
1. Member States may provide for the following specific
procedures derogating from the basic principles and guarantees
of Chapter II:
(a) a preliminary examination for the purposes of processing
cases considered within the framework set out in Section IV;
(b) procedures for the purposes of processing cases considered
within the framework set out in Section V.
2. Member States may also provide a derogation in respect
of Section VI.
SECTION II
Article 25
Inadmissible applications
1. In addition to cases in which an application is not
examined in accordance with Regulation (EC) No 343/2003,
Member States are not required to examine whether the
applicant qualifies as a refugee in accordance with Directive
2004/83/EC where an application is considered inadmissible
pursuant to this Article.
2. Member States may consider an application for asylum as
inadmissible pursuant to this Article if:
(a) another Member State has granted refugee status;
(b) a country which is not a Member State is considered as a
first country of asylum for the applicant, pursuant to Article
26;
(c) a country which is not a Member State is considered as a
safe third country for the applicant, pursuant to Article 27;
(d) the applicant is allowed to remain in the Member State
concerned on some other grounds and as result of this
he/she has been granted a status equivalent to the rights
and benefits of the refugee status by virtue of Directive
2004/83/EC;
(e) the applicant is allowed to remain in the territory of the
Member State concerned on some other grounds which
protect him/her against refoulement pending the outcome
of a procedure for the determination of status pursuant to
point (d);
(f) the applicant has lodged an identical application after a final
decision;
(g) a dependant of the applicant lodges an application, after
he/she has in accordance with Article 6(3) consented to
have his/her case be part of an application made on
his/her behalf, and there are no facts relating to the
dependant’s situation, which justify a separate application.
Article 26
The concept of first country of asylum
A country can be considered to be a first country of asylum for
a particular applicant for asylum if:
(a) he/she has been recognised in that country as a refugee and
he/she can still avail himself/herself of that protection; or
EN13.12.2005 Official Journal of the European Union L 326/25
(b) he/she otherwise enjoys sufficient protection in that
country, including benefiting from the principle of non-
refoulement;
provided that he/she will be re-admitted to that country.
In applying the concept of first country of asylum to the
particular circumstances of an applicant for asylum Member
States may take into account Article 27(1).
Article 27
The safe third country concept
1. Member States may apply the safe third country concept
only where the competent authorities are satisfied that a person
seeking asylum will be treated in accordance with the following
principles in the third country concerned:
(a) life and liberty are not threatened on account of race,
religion, nationality, membership of a particular social
group or political opinion;
(b) the principle of non-refoulement in accordance with the
Geneva Convention is respected;
(c) the prohibition of removal, in violation of the right to
freedom from torture and cruel, inhuman or degrading
treatment as laid down in international law, is respected;
and
(d) the possibility exists to request refugee status and, if found
to be a refugee, to receive protection in accordance with the
Geneva Convention.
2. The application of the safe third country concept shall be
subject to rules laid down in national legislation, including:
(a) rules requiring a connection between the person seeking
asylum and the third country concerned on the basis of
which it would be reasonable for that person to go to
that country;
(b) rules on the methodology by which the competent authorities
satisfy themselves that the safe third country concept
may be applied to a particular country or to a particular
applicant. Such methodology shall include case-by-case
consideration of the safety of the country for a particular
applicant and/or national designation of countries
considered to be generally safe;
(c) rules in accordance with international law, allowing an individual
examination of whether the third country concerned
is safe for a particular applicant which, as a minimum, shall
permit the applicant to challenge the application of the safe
third country concept on the grounds that he/she would be
subjected to torture, cruel, inhuman or degrading treatment
or punishment.
3. When implementing a decision solely based on this
Article, Member States shall:
(a) inform the applicant accordingly; and
(b) provide him/her with a document informing the authorities
of the third country, in the language of that country, that
the application has not been examined in substance.
4. Where the third country does not permit the applicant for
asylum to enter its territory, Member States shall ensure that
access to a procedure is given in accordance with the basic
principles and guarantees described in Chapter II.
5. Member States shall inform the Commission periodically
of the countries to which this concept is applied in accordance
with the provisions of this Article.
SECTION III
Article 28
Unfounded applications
1. Without prejudice to Articles 19 and 20, Member States
may only consider an application for asylum as unfounded if
the determining authority has established that the applicant
does not qualify for refugee status pursuant to Directive
2004/83/EC.
2. In the cases mentioned in Article 23(4)(b) and in cases of
unfounded applications for asylum in which any of the circumstances
listed in Article 23(4)(a) and (c) to (o) apply, Member
States may also consider an application as manifestly
unfounded, where it is defined as such in the national legis-
lation.
Article 29
Minimum common list of third countries regarded as safe
countries of origin
1. The Council shall, acting by a qualified majority on a
proposal from the Commission and after consultation of the
European Parliament, adopt a minimum common list of third
countries which shall be regarded by Member States as safe
countries of origin in accordance with Annex II.
ENL 326/26 Official Journal of the European Union 13.12.2005
2. The Council may, acting by a qualified majority on a
proposal from the Commission and after consultation of the
European Parliament, amend the minimum common list by
adding or removing third countries, in accordance with
Annex II. The Commission shall examine any request made
by the Council or by a Member State to submit a proposal
to amend the minimum common list.
3. When making its proposal under paragraphs 1 or 2, the
Commission shall make use of information from the Member
States, its own information and, where necessary, information
from UNHCR, the Council of Europe and other relevant international
organisations.
4. Where the Council requests the Commission to submit a
proposal for removing a third country from the minimum
common list, the obligation of Member States pursuant to
Article 31(2) shall be suspended with regard to this third
country as of the day following the Council decision requesting
such a submission.
5. Where a Member State requests the Commission to
submit a proposal to the Council for removing a third
country from the minimum common list, that Member State
shall notify the Council in writing of the request made to the
Commission. The obligation of this Member State pursuant to
Article 31(2) shall be suspended with regard to the third
country as of the day following the notification to the Council.
6. The European Parliament shall be informed of the
suspensions under paragraphs 4 and 5.
7. The suspensions under paragraphs 4 and 5 shall end after
three months, unless the Commission makes a proposal before
the end of this period, to withdraw the third country from the
minimum common list. The suspensions shall in any case end
where the Council rejects a proposal by the Commission to
withdraw the third country from the list.
8. Upon request by the Council, the Commission shall report
to the European Parliament and the Council on whether the
situation of a country on the minimum common list is still in
conformity with Annex II. When presenting its report, the
Commission may make such recommendations or proposals
as it deems appropriate.
Article 30
National designation of third countries as safe countries of
origin
1. Without prejudice to Article 29, Member States may
retain or introduce legislation that allows, in accordance with
Annex II, for the national designation of third countries other
than those appearing on the minimum common list, as safe
countries of origin for the purposes of examining applications
for asylum. This may include designation of part of a country as
safe where the conditions in Annex II are fulfilled in relation to
that part.
2. By derogation from paragraph 1, Member States may
retain legislation in force on 1 December 2005 that allows
for the national designation of third countries, other than
those appearing on the minimum common list, as safe
countries of origin for the purposes of examining applications
for asylum where they are satisfied that persons in the third
countries concerned are generally neither subject to:
(a) persecution as defined in Article 9 of Directive 2004/83/EC;
nor
(b) torture or inhuman or degrading treatment or punishment.
3. Member States may also retain legislation in force on 1
December 2005 that allows for the national designation of part
of a country as safe, or a country or part of a country as safe
for a specified group of persons in that country, where the
conditions in paragraph 2 are fulfilled in relation to that part
or group.
4. In assessing whether a country is a safe country of origin
in accordance with paragraphs 2 and 3, Member States shall
have regard to the legal situation, the application of the law and
the general political circumstances in the third country
concerned.
5. The assessment of whether a country is a safe country of
origin in accordance with this Article shall be based on a range
of sources of information, including in particular information
from other Member States, the UNHCR, the Council of Europe
and other relevant international organisations.
6. Member States shall notify to the Commission the
countries that are designated as safe countries of origin in
accordance with this Article.
Article 31
The safe country of origin concept
1. A third country designated as a safe country of origin in
accordance with either Article 29 or 30 may, after an individual
examination of the application, be considered as a safe country
of origin for a particular applicant for asylum only if:
(a) he/she has the nationality of that country; or
EN13.12.2005 Official Journal of the European Union L 326/27
(b) he/she is a stateless person and was formerly habitually
resident in that country;
and he/she has not submitted any serious grounds for
considering the country not to be a safe country of origin in
his/her particular circumstances and in terms of his/her qualification
as a refugee in accordance with Directive 2004/83/EC.
2. Member States shall, in accordance with paragraph 1,
consider the application for asylum as unfounded where the
third country is designated as safe pursuant to Article 29.
3. Member States shall lay down in national legislation
further rules and modalities for the application of the safe
country of origin concept.
SECTION IV
Article 32
Subsequent application
1. Where a person who has applied for asylum in a Member
State makes further representations or a subsequent application
in the same Member State, that Member State may examine
these further representations or the elements of the subsequent
application in the framework of the examination of the previous
application or in the framework of the examination of the
decision under review or appeal, insofar as the competent
authorities can take into account and consider all the
elements underlying the further representations or subsequent
application within this framework.
2. Moreover, Member States may apply a specific procedure
as referred to in paragraph 3, where a person makes a
subsequent application for asylum:
(a) after his/her previous application has been withdrawn or
abandoned by virtue of Articles 19 or 20;
(b) after a decision has been taken on the previous application.
Member States may also decide to apply this procedure only
after a final decision has been taken.
3. A subsequent application for asylum shall be subject first
to a preliminary examination as to whether, after the withdrawal
of the previous application or after the decision
referred to in paragraph 2(b) of this Article on this application
has been reached, new elements or findings relating to the
examination of whether he/she qualifies as a refugee by virtue
of Directive 2004/83/EC have arisen or have been presented by
the applicant.
4. If, following the preliminary examination referred to in
paragraph 3 of this Article, new elements or findings arise or
are presented by the applicant which significantly add to the
likelihood of the applicant qualifying as a refugee by virtue of
Directive 2004/83/EC, the application shall be further examined
in conformity with Chapter II.
5. Member States may, in accordance with national legislation,
further examine a subsequent application where there
are other reasons why a procedure has to be re-opened.
6. Member States may decide to further examine the application
only if the applicant concerned was, through no fault of
his/her own, incapable of asserting the situations set forth in
paragraphs 3, 4 and 5 of this Article in the previous procedure,
in particular by exercising his/her right to an effective remedy
pursuant to Article 39.
7. The procedure referred to in this Article may also be
applicable in the case of a dependant who lodges an application
after he/she has, in accordance with Article 6(3), consented to
have his/her case be part of an application made on his/her
behalf. In this case the preliminary examination referred to in
paragraph 3 of this Article will consist of examining whether
there are facts relating to the dependant’s situation which justify
a separate application.
Article 33
Failure to appear
Member States may retain or adopt the procedure provided for
in Article 32 in the case of an application for asylum filed at a
later date by an applicant who, either intentionally or owing to
gross negligence, fails to go to a reception centre or appear
before the competent authorities at a specified time.
Article 34
Procedural rules
1. Member States shall ensure that applicants for asylum
whose application is subject to a preliminary examination
pursuant to Article 32 enjoy the guarantees provided for in
Article 10(1).
2. Member States may lay down in national law rules on the
preliminary examination pursuant to Article 32. Those rules
may, inter alia:
(a) oblige the applicant concerned to indicate facts and
substantiate evidence which justify a new procedure;
(b) require submission of the new information by the applicant
concerned within a time-limit after he/she obtained such
information;
ENL 326/28 Official Journal of the European Union 13.12.2005
(c) permit the preliminary examination to be conducted on the
sole basis of written submissions without a personal
interview.
The conditions shall not render impossible the access of
applicants for asylum to a new procedure or result in the
effective annulment or severe curtailment of such access.
3. Member States shall ensure that:
(a) the applicant is informed in an appropriate manner of the
outcome of the preliminary examination and, in case the
application will not be further examined, of the reasons for
this and the possibilities for seeking an appeal or review of
the decision;
(b) if one of the situations referred to in Article 32(2) applies,
the determining authority shall further examine the
subsequent application in conformity with the provisions
of Chapter II as soon as possible.
SECTION V
Article 35
Border procedures
1. Member States may provide for procedures, in accordance
with the basic principles and guarantees of Chapter II, in order
to decide at the border or transit zones of the Member State on
applications made at such locations.
2. However, when procedures as set out in paragraph 1 do
not exist, Member States may maintain, subject to the
provisions of this Article and in accordance with the laws or
regulations in force on 1 December 2005, procedures derogating
from the basic principles and guarantees described in
Chapter II, in order to decide at the border or in transit
zones as to whether applicants for asylum who have arrived
and made an application for asylum at such locations, may
enter their territory.
3. The procedures referred to in paragraph 2 shall ensure in
particular that the persons concerned:
(a) are allowed to remain at the border or transit zones of the
Member State, without prejudice to Article 7;
(b) are be immediately informed of their rights and obligations,
as described in Article 10(1) (a);
(c) have access, if necessary, to the services of an interpreter, as
described in Article 10(1)(b);
(d) are interviewed, before the competent authority takes a
decision in such procedures, in relation to their application
for asylum by persons with appropriate knowledge of the
relevant standards applicable in the field of asylum and
refugee law, as described in Articles 12, 13 and 14;
(e) can consult a legal adviser or counsellor admitted or
permitted as such under national law, as described in
Article 15(1); and
(f) have a representative appointed in the case of unaccompanied
minors, as described in Article 17(1), unless Article
17(2) or (3) applies.
Moreover, in case permission to enter is refused by a competent
authority, this competent authority shall state the reasons in fact
and in law why the application for asylum is considered as
unfounded or as inadmissible.
4. Member States shall ensure that a decision in the
framework of the procedures provided for in paragraph 2 is
taken within a reasonable time. When a decision has not been
taken within four weeks, the applicant for asylum shall be
granted entry to the territory of the Member State in order
for his/her application to be processed in accordance with the
other provisions of this Directive.
5. In the event of particular types of arrivals, or arrivals
involving a large number of third country nationals or
stateless persons lodging applications for asylum at the border
or in a transit zone, which makes it practically impossible to
apply there the provisions of paragraph 1 or the specific
procedure set out in paragraphs 2 and 3, those procedures
may also be applied where and for as long as these third
country nationals or stateless persons are accommodated
normally at locations in proximity to the border or transit zone.
SECTION VI
Article 36
The European safe third countries concept
1. Member States may provide that no, or no full, examination
of the asylum application and of the safety of the
applicant in his/her particular circumstances as described in
Chapter II, shall take place in cases where a competent
authority has established, on the basis of the facts, that the
applicant for asylum is seeking to enter or has entered
illegally into its territory from a safe third country according
to paragraph 2.
2. A third country can only be considered as a safe third
country for the purposes of paragraph 1 where:
(a) it has ratified and observes the provisions of the Geneva
Convention without any geographical limitations;
EN13.12.2005 Official Journal of the European Union L 326/29
(b) it has in place an asylum procedure prescribed by law;
(c) it has ratified the European Convention for the Protection of
Human Rights and Fundamental Freedoms and observes its
provisions, including the standards relating to effective
remedies; and
(d) it has been so designated by the Council in accordance with
paragraph 3.
3. The Council shall, acting by qualified majority on a
proposal from the Commission and after consultation of the
European Parliament, adopt or amend a common list of third
countries that shall be regarded as safe third countries for the
purposes of paragraph 1.
4. The Member States concerned shall lay down in national
law the modalities for implementing the provisions of
paragraph 1 and the consequences of decisions pursuant to
those provisions in accordance with the principle of non-refoulement
under the Geneva Convention, including providing for
exceptions from the application of this Article for humanitarian
or political reasons or for reasons of public international law.
5. When implementing a decision solely based on this
Article, the Member States concerned shall:
(a) inform the applicant accordingly; and
(b) provide him/her with a document informing the authorities
of the third country, in the language of that country, that
the application has not been examined in substance.
6. Where the safe third country does not re-admit the
applicant for asylum, Member States shall ensure that access
to a procedure is given in accordance with the basic principles
and guarantees described in Chapter II.
7. Member States which have designated third countries as
safe countries in accordance with national legislation in force on
1 December 2005 and on the basis of the criteria in paragraph
2(a), (b) and (c), may apply paragraph 1 to these third countries
until the Council has adopted the common list pursuant to
paragraph 3.
CHAPTER IV
PROCEDURES FOR THE WITHDRAWAL OF REFUGEE STATUS
Article 37
Withdrawal of refugee status
Member States shall ensure that an examination to withdraw
the refugee status of a particular person may commence when
new elements or findings arise indicating that there are reasons
to reconsider the validity of his/her refugee status.
Article 38
Procedural rules
1. Member States shall ensure that, where the competent
authority is considering withdrawing the refugee status of a
third country national or stateless person in accordance with
Article 14 of Directive 2004/83/EC, the person concerned shall
enjoy the following guarantees:
(a) to be informed in writing that the competent authority is
reconsidering his or her qualification for refugee status and
the reasons for such a reconsideration; and
(b) to be given the opportunity to submit, in a personal
interview in accordance with Article 10(1)(b) and Articles
12, 13 and 14 or in a written statement, reasons as to why
his/her refugee status should not be withdrawn.
In addition, Member States shall ensure that within the
framework of such a procedure:
(c) the competent authority is able to obtain precise and up-todate
information from various sources, such as, where
appropriate, from the UNHCR, as to the general situation
prevailing in the countries of origin of the persons
concerned; and
(d) where information on an individual case is collected for the
purposes of reconsidering the refugee status, it is not
obtained from the actor(s) of persecution in a manner
that would result in such actor(s) being directly informed
of the fact that the person concerned is a refugee whose
status is under reconsideration, nor jeopardise the physical
integrity of the person and his/her dependants, or the liberty
and security of his/her family members still living in the
country of origin.
ENL 326/30 Official Journal of the European Union 13.12.2005
2. Member States shall ensure that the decision of the
competent authority to withdraw the refugee status is given
in writing. The reasons in fact and in law shall be stated in
the decision and information on how to challenge the decision
shall be given in writing.
3. Once the competent authority has taken the decision to
withdraw the refugee status, Article 15, paragraph 2, Article 16,
paragraph 1 and Article 21 are equally applicable.
4. By derogation to paragraphs 1, 2 and 3 of this Article,
Member States may decide that the refugee status shall lapse by
law in case of cessation in accordance with Article 11(1)(a) to
(d) of Directive 2004/83/EC or if the refugee has unequivocally
renounced his/her recognition as a refugee.
CHAPTER V
APPEALS PROCEDURES
Article 39
The right to an effective remedy
1. Member States shall ensure that applicants for asylum
have the right to an effective remedy before a court or
tribunal, against the following:
(a) a decision taken on their application for asylum, including a
decision:
(i) to consider an application inadmissible pursuant to
Article 25(2),
(ii) taken at the border or in the transit zones of a Member
State as described in Article 35(1),
(iii) not to conduct an examination pursuant to Article 36;
(b) a refusal to re-open the examination of an application after
its discontinuation pursuant to Articles 19 and 20;
(c) a decision not to further examine the subsequent application
pursuant to Articles 32 and 34;
(d) a decision refusing entry within the framework of the
procedures provided for under Article 35(2);
(e) a decision to withdraw of refugee status pursuant to
Article 38.
2. Member States shall provide for time-limits and other
necessary rules for the applicant to exercise his/her right to
an effective remedy pursuant to paragraph 1.
3. Member States shall, where appropriate, provide for rules
in accordance with their international obligations dealing with:
(a) the question of whether the remedy pursuant to paragraph
1 shall have the effect of allowing applicants to remain in
the Member State concerned pending its outcome;
(b) the possibility of legal remedy or protective measures where
the remedy pursuant to paragraph 1 does not have the
effect of allowing applicants to remain in the Member
State concerned pending its outcome. Member States may
also provide for an ex officio remedy; and
(c) the grounds for challenging a decision under Article 25(2)(c)
in accordance with the methodology applied under Article
27(2)(b) and (c).
4. Member States may lay down time-limits for the court or
tribunal pursuant to paragraph 1 to examine the decision of the
determining authority.
5. Where an applicant has been granted a status which offers
the same rights and benefits under national and Community
law as the refugee status by virtue of Directive 2004/83/EC,
the applicant may be considered as having an effective
remedy where a court or tribunal decides that the remedy
pursuant to paragraph 1 is inadmissible or unlikely to
succeed on the basis of insufficient interest on the part of the
applicant in maintaining the proceedings.
6. Member States may also lay down in national legislation
the conditions under which it can be assumed that an applicant
has implicitly withdrawn or abandoned his/her remedy pursuant
to paragraph 1, together with the rules on the procedure to be
followed.
EN13.12.2005 Official Journal of the European Union L 326/31
CHAPTER VI
GENERAL AND FINAL PROVISIONS
Article 40
Challenge by public authorities
This Directive does not affect the possibility for public authorities
of challenging the administrative and/or judicial decisions
as provided for in national legislation.
Article 41
Confidentiality
Member States shall ensure that authorities implementing this
Directive are bound by the confidentiality principle as defined in
national law, in relation to any information they obtain in the
course of their work.
Article 42
Report
No later than 1 December 2009, the Commission shall report
to the European Parliament and the Council on the application
of this Directive in the Member States and shall propose any
amendments that are necessary. Member States shall send the
Commission all the information that is appropriate for drawing
up this report. After presenting the report, the Commission
shall report to the European Parliament and the Council on
the application of this Directive in the Member States at least
every two years.
Article 43
Transposition
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 1 December 2007. Concerning Article 15,
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 1 December 2008. They shall forthwith inform
the Commission thereof.
When Member States adopt those provisions, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.
Member States shall communicate to the Commission the text
of the provisions of national law which they adopt in the field
covered by this Directive.
Article 44
Transition
Member States shall apply the laws, regulations and administrative
provisions set out in Article 43 to applications for
asylum lodged after 1 December 2007 and to procedures for
the withdrawal of refugee status started after 1 December 2007.
Article 45
Entry into force
This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.
Article 46
Addressees
This Directive is addressed to the Member States in conformity
with the Treaty establishing the European Community.
Done at Brussels, 1 December 2005.
For the Council
The President
Ashton of UPHOLLAND
ENL 326/32 Official Journal of the European Union 13.12.2005
ANNEX I
Definition of ‘determining authority’
When implementing the provision of this Directive, Ireland may, insofar as the provisions of section 17(1) of the Refugee
Act 1996 (as amended) continue to apply, consider that:
— ‘determining authority’ provided for in Article 2(e) of this Directive shall, insofar as the examination of whether an
applicant should or, as the case may be, should not be declared to be a refugee is concerned, mean the Office of the
Refugee Applications Commissioner; and
— ‘decisions at first instance’ provided for in Article 2(e) of this Directive shall include recommendations of the Refugee
Applications Commissioner as to whether an applicant should or, as the case may be, should not be declared to be a
refugee.
Ireland will notify the Commission of any amendments to the provisions of section 17(1) of the Refugee Act 1996 (as
amended).
ANNEX II
Designation of safe countries of origin for the purposes of Articles 29 and 30(1)
A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law
within a democratic system and the general political circumstances, it can be shown that there is generally and consistently
no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or
punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.
In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against
persecution or mistreatment by:
(a) the relevant laws and regulations of the country and the manner in which they are applied;
(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights
and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention
against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said
European Convention;
(c) respect of the non-refoulement principle according to the Geneva Convention;
(d) provision for a system of effective remedies against violations of these rights and freedoms.
EN13.12.2005 Official Journal of the European Union L 326/33
ANNEX III
Definition of ‘applicant’ or ‘applicant for asylum’
When implementing the provisions of this Directive Spain may, insofar as the provisions of ‘Ley 30/1992 de Régimen
jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común’ of 26 November 1992 and ‘Ley 29/1998
reguladora de la Jurisdicción Contencioso-Administrativa’ of 13 July 1998 continue to apply, consider that, for the purposes of
Chapter V, the definition of ‘applicant’ or ‘applicant for asylum’ in Article 2(c) of this Directive shall include ‘recurrente’ as
established in the abovementioned Acts.
A ‘recurrente’ shall be entitled to the same guarantees as an ‘applicant’ or an ‘applicant for asylum’ as set out in this
Directive for the purposes of exercising his/her right to an effective remedy in Chapter V.
Spain will notify the Commission of any relevant amendments to the abovementioned Act.
ENL 326/34 Official Journal of the European Union 13.12.2005
REGULATION (EU) No 439/2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 19 May 2010
establishing a European Asylum Support Office
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 74 and Article 78(1) and (2)
thereof,
Having regard to the proposal from the European Commission,
Acting in accordance with the ordinary legislative procedure (1),
Whereas:
(1) The policy of the Union on the Common European
Asylum System (the CEAS) is designed, under the terms
of the Hague Programme, to establish a common asylum
area by means of an effective harmonised procedure
consistent with the values and humanitarian tradition
of the European Union.
(2) Much progress has been made in recent years towards
the establishment of the CEAS thanks to the introduction
of common minimum standards. There remain great
disparities between the Member States, however, in the
granting of international protection and the forms that
such international protection takes. Those disparities
should be reduced.
(3) In its Policy Plan on Asylum, adopted in June 2008, the
Commission announced its intention to develop the
CEAS by proposing a revision of existing legal
instruments in order to achieve greater harmonisation
of the applicable standards and by strengthening
support for practical cooperation between the Member
States, in particular by a legislative proposal to establish a
European Asylum Support Office (the Support Office) in
order to increase coordination of operational cooperation
between Member States so that the common rules are
implemented effectively.
(4) In the European Pact on Immigration and Asylum,
adopted in September 2008, the European Council
solemnly reiterated that any persecuted foreigner is
entitled to obtain aid and protection on the territory of
the European Union in application of the Geneva
Convention of 28 July 1951 relating to the Status of
Refugees, as amended by the New York Protocol of
31 January 1967, and other relevant treaties. It was
also expressly agreed that a European support office
would be established in 2009.
(5) Practical cooperation on asylum aims to increase
convergence and ensure ongoing quality of Member
States' decision-making procedures in that area within a
European legislative framework. A substantial number of
practical cooperation measures has already been
undertaken in recent years, notably the adoption of a
common approach to information on countries of
origin and the establishment of a common European
asylum curriculum.
(6) The Support Office should be established in order to
strengthen and develop those cooperation measures.
The Support Office should take due account of those
cooperation measures and the lessons learnt therefrom.
(7) For Member States which are faced with specific and
disproportionate pressures on their asylum and
reception systems, due in particular to their geographical
or demographic situation, the Support Office should
support the development of solidarity within the Union
to promote a better relocation of beneficiaries of international
protection between Member States, while
ensuring that asylum and reception systems are not
abused.
(8) In order to best fulfil its mandate, the Support Office
should be independent in technical matters and should
enjoy legal, administrative and financial autonomy. To
that end, the Support Office should be a body of the
Union having legal personality and exercising the implementing
powers conferred upon it by this Regulation.
EN29.5.2010 Official Journal of the European Union L 132/11
(1) Position of the European Parliament of 7 May 2009 (not yet
published in the Official Journal), position of the Council at first
reading of 25 February 2010 (not yet published in the Official
Journal). Position of the European Parliament of 18 May 2010
(not yet published in the Official Journal).
(9) The Support Office should work in close cooperation
with Member States'asylum authorities, with national
immigration and asylum services and other services,
drawing on the capacity and expertise of those services,
and with the Commission. Member States should
cooperate with the Support Office to ensure that it is
able to fulfil its mandate.
(10) The Support Office should also act in close cooperation
with the UN High Commissioner for Refugees (the
UNHCR) and, where appropriate, with relevant international
organisations in order to benefit from their
expertise and support. To that end, the roles of the
UNHCR and the other relevant international organisations
should be fully recognised and those organisations
should be fully involved in the work of the
Support Office. Any financial resources made available
by the Support Office to the UNHCR in accordance
with this Regulation should not result in double
financing of the UNHCR's activities with other international
or national sources.
(11) Furthermore, to fulfil its purpose, and to the extent
required for the fulfilment of its duties, the Support
Office should cooperate with other bodies of the
Union, in particular with the European Agency for the
Management of Operational Cooperation at the External
Borders of the Member States of the European Union
(Frontex), established by Council Regulation (EC)
No 2007/2004 (1), and the European Union Agency for
Fundamental Rights (FRA), established by Council Regulation
(EC) No 168/2007 (2).
(12) The Support Office should cooperate with the European
Migration Network, established by Council Decision
2008/381/EC (3), in order to avoid duplication of
activities. The Support Office should also maintain a
close dialogue with civil society with a view to
exchanging information and pooling knowledge in the
field of asylum.
(13) The Support Office should be a European centre of
expertise on asylum, responsible for facilitating,
coordinating and strengthening practical cooperation
among Member States on the many aspects of asylum,
so that Member States are better able to provide international
protection to those entitled, while dealing fairly
and efficiently with those who do not qualify for international
protection,where appropriate. The Support
Office's mandate should be focused on three major
duties, namely contributing to the implementation of
the CEAS, supporting practical cooperation among
Member States on asylum and supporting Member
States that are subject to particular pressure.
(14) The Support Office should have no direct or indirect
powers in relation to the taking of decisions by
Member States' asylum authorities on individual applications
for international protection.
(15) In order to provide and/or coordinate the provision of
speedy and effective operational support to Member
States subject to particular pressure on their asylum
and reception systems, the Support Office should, at
the request of the Member States concerned, coordinate
action to support those Member States inter alia through
the deployment in their territories of asylum support
teams made up of asylum experts. Those teams should,
in particular, provide expertise relating to interpreting
services, information on countries of origin and
knowledge of the handling and management of asylum
cases. The arrangements for the asylum support teams
should be governed by this Regulation in order to ensure
their effective deployment.
(16) The Support Office should fulfil its purpose in conditions
which enable it to serve as a reference point by virtue of
its independence, the scientific and technical quality of
the assistance it provides and the information it
disseminates, the transparency of its procedures and
operating methods, and its diligence in performing the
duties assigned to it.
(17) The Commission and the Member States should be represented
on the Management Board of the Support Office
in order effectively to control its workings. The
Management Board should, where possible, consist of
the operational heads of the Member States' asylum
administrations or their representatives. It should be
given the necessary powers, in particular to establish
the budget, verify its execution, adopt the appropriate
financial rules, establish transparent working procedures
for decision-making by the Support Office, adopt the
annual report on the situation of asylum in the Union
and technical documents on the implementation of the
Union's asylum instruments, and appoint an Executive
Director and, if appropriate, an Executive Committee.
Given its expertise in the field of asylum, the UNHCR
should be represented by a non-voting member of the
Management Board so that it is fully involved in the
work of the Support Office.
ENL 132/12 Official Journal of the European Union 29.5.2010
(1) OJ L 349, 25.11.2004, p. 1.
(2) OJ L 53, 22.2.2007, p. 1.
(3) OJ L 131, 21.5.2008, p. 7.
(18) Given the nature of the duties of the Support Office and
the role of the Executive Director, and with a view to
enabling the European Parliament to adopt an opinion
on the selected candidate, before his appointment as well
as before a possible extension of his term of office, the
Executive Director should be invited to make a statement
and to answer questions to the European Parliament's
competent committee or committees. The Executive
Director should also present the annual report to the
European Parliament. Furthermore, the
European Parliament should have the possibility to
invite the Executive Director to report on the
performance of his duties.
(19) To ensure the Support Office's full autonomy and independence,
it should have its own budget, most of which
will comprise a contribution from the Union. The
financing of the Support Office should be subject to an
agreement by the budgetary authority as set out in
point 47 of the Interinstitutional Agreement of 17 May
2006 between the European Parliament, the Council and
the Commission on budgetary discipline and sound
financial management (1). The budgetary procedure of
the Union should be applicable to the Union's
contribution and to any grant chargeable to the general
budget of the European Union. The auditing of accounts
should be undertaken by the Court of Auditors.
(20) The Support Office should cooperate with third-country
authorities and international organisations competent in
matters falling within the scope of this Regulation and
third countries within the framework of working
arrangements concluded in accordance with the
relevant provisions of the Treaty on the Functioning of
the European Union (TFEU).
(21) In accordance with Article 3 of the Protocol on the
Position of the United Kingdom and Ireland in respect
of the area of freedom, security and justice, annexed to
the Treaty on the European Union (TEU) and to the
TFEU, the United Kingdom and Ireland have notified
their wish, by letters of 18 May 2009, to take part in
the adoption and application of this Regulation.
(22) In accordance with Articles 1 and 2 of the Protocol on
the Position of Denmark, annexed to the TEU and to the
TFEU, Denmark is not taking part in the adoption of this
Regulation and is not bound by it nor subject to its
application.
(23) Considering that Denmark, as a Member State, has
hitherto contributed to the practical cooperation
between Member States within the area of asylum, the
Support Office should facilitate operational cooperation
with Denmark. To that end, a Danish representative
should be invited to attend all the meetings of the
Management Board, which should also be able to
decide to invite Danish observers to the meetings of
working parties, where appropriate.
(24) To fulfil its purpose, the Support Office should be open
to participation by countries which have concluded
agreements with the Union by virtue of which they
have adopted and apply law of the Union in the field
covered by this Regulation, in particular Iceland, Liechtenstein,
Norway and Switzerland. It should also, in
agreement with the Commission, be able to conclude
working arrangements in accordance with the TFEU
with countries other than those which have concluded
agreements with the Union by virtue of which they have
adopted and apply law of the Union. Under no circumstances,
however, should it formulate any independent
external policy.
(25) Council Regulation (EC, Euratom) No 1605/2002 of
25 June 2002 on the Financial Regulation applicable to
the general budget of the European Communities (2) (the
Financial Regulation), and in particular Article 185
thereof should apply to the Support Office.
(26) Regulation (EC) No 1073/1999 of the European
Parliament and of the Council of 25 May 1999
concerning investigations conducted by the European
Anti-Fraud Office (OLAF) (3) should apply without
restriction to the Support Office, which should accede
to the Interinstitutional Agreement of 25 May 1999
between the European Parliament, the Council of the
European Union and the Commission of the European
Communities concerning internal investigations by the
European Anti-Fraud Office (4).
(27) Regulation (EC) No 1049/2001 of the European
Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council
and Commission documents (5) should apply to the
Support Office.
(28) Regulation (EC) No 45/2001 of the European Parliament
and of the Council of 18 December 2000 on the
protection of individuals with regard to the processing
of personal data by the Community institutions and
bodies and on the free movement of such data (6)
should apply to the processing of personal data by the
Support Office.
EN29.5.2010 Official Journal of the European Union L 132/13
(1) OJ C 139, 14.6.2006, p. 1.
(2) OJ L 248, 16.9.2002, p. 1.
(3) OJ L 136, 31.5.1999, p. 1.
(4) OJ L 136, 31.5.1999, p. 15.
(5) OJ L 145, 31.5.2001, p. 43.
(6) OJ L 8, 12.1.2001, p. 1.
(29) The necessary provisions regarding accommodation for
the Support Office in the Member State in which it is to
have its headquarters and the specific rules applicable to
all the Support Office's staff and members of their
families should be laid down in a headquarters
agreement. Furthermore, the host Member State should
provide the best possible conditions to ensure the proper
functioning of the Support Office, including schools for
children and transport, in order to attract high-quality
human resources from as wide a geographical area as
possible.
(30) Since the objectives of this Regulation, namely the need
to improve the implementation of the CEAS, to facilitate,
coordinate and strengthen practical cooperation between
Member States on asylum and to provide and/or
coordinate the provision of operational support to
Member States subject to particular pressure on their
asylum and reception systems, cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale and effects of the action, be better
achieved at the level of the Union, the Union may adopt
measures in accordance with the principle of subsidiarity
as set out in Article 5 of the TEU. In accordance with the
principle of proportionality, as set out in that Article, this
Regulation does not go beyond what is necessary in
order to achieve those objectives.
(31) This Regulation respects fundamental rights and observes
the principles recognised in particular by the Charter of
Fundamental Rights of the European Union and should
be applied in accordance with the right to asylum
recognised in Article 18 of the Charter,
HAVE ADOPTED THIS REGULATION:
CHAPTER 1
ESTABLISHMENT AND PURPOSE OF THE EUROPEAN ASYLUM
SUPPORT OFFICE
Article 1
Establishment of the European Asylum Support Office
A European Asylum Support Office (the Support Office) is
hereby established in order to help to improve the implementation
of the Common European Asylum System (the CEAS), to
strengthen practical cooperation among Member States on
asylum and to provide and/or coordinate the provision of operational
support to Member States subject to particular pressure
on their asylum and reception systems.
Article 2
Purpose of the Support Office
1. The Support Office shall facilitate, coordinate and
strengthen practical cooperation among Member States on the
many aspects of asylum and help to improve the implementation
of the CEAS. In this regard, the Support Office shall be
fully involved in the external dimension of the CEAS.
2. The Support Office shall provide effective operational
support to Member States subject to particular pressure on
their asylum and reception systems, drawing upon all useful
resources at its disposal which may include the coordination
of resources provided for by Member States under the
conditions laid down in this Regulation.
3. The Support Office shall provide scientific and technical
assistance in regard to the policy and legislation of the Union in
all areas having a direct or indirect impact on asylum so that it
is in a position to lend its full support to practical cooperation
on asylum and to carry out its duties effectively. It shall be an
independent source of information on all issues in those areas.
4. The Support Office shall fulfil its purpose in conditions
which enable it to serve as a reference point by virtue of its
independence, the scientific and technical quality of the
assistance it provides and the information it disseminates, the
transparency of its operating procedures and methods, its
diligence in performing the duties assigned to it, and the
information technology support needed to fulfil its mandate.
5. The Support Office shall work closely with the Member
States' asylum authorities, with national immigration and
asylum services and other national services and with the
Commission. The Support Office shall carry out its duties
without prejudice to those assigned to other relevant bodies
of the Union and shall work closely with those bodies and
with the UNHCR.
6. The Support Office shall have no powers in relation to the
taking of decisions by Member States' asylum authorities on
individual applications for international protection.
CHAPTER 2
DUTIES OF THE SUPPORT OFFICE
SECTION 1
Supporting practical cooperation on asylum
Article 3
Best practices
The Support Office shall organise, promote and coordinate
activities enabling the exchange of information and the identification
and pooling of best practices in asylum matters
between the Member States.
ENL 132/14 Official Journal of the European Union 29.5.2010
Article 4
Information on countries of origin
The Support Office shall organise, promote and coordinate
activities relating to information on countries of origin, in
particular:
(a) the gathering of relevant, reliable, accurate and up-to date
information on countries of origin of persons applying for
international protection in a transparent and impartial
manner, making use of all relevant sources of information,
including information gathered from governmental, nongovernmental
and international organisations and the institutions
and bodies of the Union;
(b) the drafting of reports on countries of origin, on the basis
of information gathered in accordance with point (a);
(c) the management and further development of a portal for
gathering information on countries of origin and its maintenance
with a view to ensuring transparency in accordance
with the necessary rules for access to such information
under Article 42;
(d) the development of a common format and a common
methodology for presenting, verifying and using
information on countries of origin;
(e) the analysis of information on countries of origin in a transparent
manner with a view to fostering convergence of
assessment criteria, and, where appropriate, making use of
the results of meetings of one or more working parties. That
analysis shall not purport to give instructions to Member
States about the grant or refusal of applications for
international protection.
Article 5
Supporting relocation of beneficiaries of international
protection within the Union
For Member States which are faced with specific and disproportionate
pressures on their asylum and reception systems, due
in particular to their geographical or demographic situation, the
Support Office shall promote, facilitate and coordinate
exchanges of information and other activities related to relocation
within the Union. Relocation within the Union shall be
carried out only on an agreed basis between Member States and
with consent of the beneficiary of international protection
concerned and, where appropriate, in consultation with the
UNHCR.
Article 6
Support for training
1. The Support Office shall establish and develop training
available to members of all national administrations and
courts and tribunals, and national services responsible for
asylum matters in the Member States. Participation in training
is without prejudice to national systems and procedures.
The Support Office shall develop such training in close cooperation
with Member States' asylum authorities and, where
relevant, take advantage of expertise of academic institutions
and other relevant organisations.
2. The Support Office shall manage and develop a European
asylum curriculum taking into account the Union's existing
cooperation in that field.
3. The training offered by the Support Office may be general,
specific or thematic and may include ‘train-the-trainers’
methodology.
4. Specific or thematic training activities in knowledge and
skills regarding asylum matters shall include and shall not be
limited to:
(a) international human rights and the asylum acquis of the
Union, including specific legal and case-law issues;
(b) issues related to the handling of asylum applications from
minors and vulnerable persons with specific needs;
(c) interview techniques;
(d) the use of expert medical and legal reports in asylum
procedures;
(e) issues relating to the production and use of information on
countries of origin;
(f) reception conditions, including special attention given to
vulnerable groups and victims of torture.
5. The training offered shall be of high quality and shall
identify key principles and best practices with a view to
greater convergence of administrative methods and decisions
and legal practice, in full respect of the independence of
national courts and tribunals.
EN29.5.2010 Official Journal of the European Union L 132/15
6. The Support Office shall provide experts who are part of
the Asylum Intervention Pool referred to in Article 15 with
specialist training relevant to their duties and functions and
shall conduct regular exercises with those experts in accordance
with the specialist training and exercise schedule referred to in
its annual work programme.
7. The Support Office may organise training activities in
cooperation with Member States in their territory.
Article 7
Support for the external dimensions of the CEAS
The Support Office shall, in agreement with the Commission,
coordinate the exchange of information and other action taken
on issues arising from the implementation of instruments and
mechanisms relating to the external dimension of the CEAS.
The Support Office shall coordinate exchanges of information
and other actions on resettlement taken by Member States with
a view to meeting the international protection needs of refugees
in third countries and showing solidarity with their host
countries.
Pursuant to its mandate, and in accordance with Article 49, the
Support Office may cooperate with competent authorities of
third countries in technical matters, in particular with a view
to promoting and assisting capacity building in the third countries'
own asylum and reception systems and implementing
regional protection programmes, and other actions relevant to
durable solutions.
SECTION 2
Support for Member States subject to particular pressure
Article 8
Particular pressure on the asylum and reception system
The Support Office shall coordinate and support common
action assisting asylum and reception systems of Member
States subject to particular pressure which places exceptionally
heavy and urgent demands on their reception facilities and
asylum systems. Such pressure may be characterised by the
sudden arrival of a large number of third-country nationals
who may be in need of international protection and may
arise from the geographical or demographical situation of the
Member State.
Article 9
Gathering and analysing information
1. To be able to assess the needs of Member States subject to
particular pressure, the Support Office shall gather, in particular
on the basis of information provided by Member States, the
UNHCR and, where appropriate, other relevant organisations,
relevant information for the identification, preparation and
formulation of emergency measures referred to in Article 10
to cope with such pressure.
2. The Support Office shall systematically identify, collect
and analyse, on the basis of data provided by Member States
subject to particular pressure, information relating to the
structures and staff available, especially for translation and interpretation,
information on countries of origin and on assistance
in the handling and management of asylum cases and the
asylum capacity in those Member States subject to particular
pressure, with a view to fostering quick and reliable mutual
information to the various Member States' asylum authorities.
3. The Support Office shall analyse data on any sudden
arrival of large numbers of third country nationals, which
may cause particular pressure on asylum and reception
systems and ensure the rapid exchange of relevant information
amongst Member States and the Commission. The Support
Office shall make use of existing early warning systems and
mechanisms and, if necessary, set up an early warning system
for its own purposes.
Article 10
Support actions for the Member States
At the request of the Member States concerned, the Support
Office shall coordinate actions to support Member States subject
to particular pressure on their asylum and reception systems,
including coordinating:
(a) action to help Member States subject to particular pressure
to facilitate an initial analysis of asylum applications under
examination by the competent national authorities;
(b) action designed to ensure that appropriate reception
facilities can be made available by the Member States
subject to particular pressure, in particular emergency
accommodation, transport and medical assistance;
(c) the asylum support teams, the operating arrangements of
which are set out in Chapter 3.
ENL 132/16 Official Journal of the European Union 29.5.2010
SECTION 3
Contribution to the implementation of the CEAS
Article 11
Gathering and exchanging information
1. The Support Office shall organise, coordinate and
promote the exchange of information between the Member
States' asylum authorities and between the Commission and
the Member States' asylum authorities concerning the implementation
of all relevant instruments of the asylum acquis of
the Union. To that end, the Support Office may create factual,
legal and case-law databases on national, Union and international
asylum instruments making use, inter alia, of existing
arrangements. Without prejudice to the activities of the Support
Office pursuant to Article 15 and 16, no personal data shall be
stored in such databases, unless such data has been obtained by
the Support Office from documents that are publicly accessible.
2. In particular, the Support Office shall gather information
on the following:
(a) the processing of applications for international protection
by national administrations and authorities;
(b) national law and legal developments in the field of asylum,
including case law.
Article 12
Reports and other Support Office documents
1. The Support Office shall draw up an annual report on the
situation of asylum in the Union, taking due account of
information already available from other relevant sources. As
part of that report, the Support Office shall evaluate the results
of activities carried out under this Regulation and make a
comprehensive comparative analysis of them with the aim of
improving the quality, consistency and effectiveness of the
CEAS.
2. The Support Office may adopt, in accordance with its
work programme or at the request of the Management Board
or the Commission, taking due account of views expressed by
Member States or the European Parliament, acting in close
consultation with its working parties and the Commission,
technical documents on the implementation of the asylum
instruments of the Union, including guidelines and operating
manuals. Whenever such technical documents make reference
to points of international refugee law, due regard shall be given
to relevant UNHCR guidelines. The documents shall not purport
to give instructions to Member States about the grant or refusal
of applications for international protection.
CHAPTER 3
ASYLUM SUPPORT TEAMS
Article 13
Coordination
1. A Member State or Member States subject to particular
pressure may request the Support Office for deployment of an
asylum support team. The requesting Member State or Member
States shall provide, in particular a description of the situation,
indicate the objectives of the request for deployment and specify
the estimated deployment requirements, in accordance with
Article 18(1).
2. In response to such a request, the Support Office may
coordinate the necessary technical and operational assistance
to the requesting Member State or Member States and the
deployment, for a limited time, of an asylum support team in
the territory of that Member State or those Member States on
the basis of an operating plan as referred to in Article 18.
Article 14
Technical assistance
The asylum support teams shall provide expertise as agreed
upon in the operating plan referred to in Article 18, in
particular in relation to interpreting services, information on
countries of origin and knowledge of the handling and
management of asylum cases within the framework of the
actions to support Member States referred to in Article 10.
Article 15
Asylum Intervention Pool
1. On a proposal by the Executive Director, the Management
Board shall decide by a majority of three quarters of its
members with voting rights on the profiles and the overall
number of the experts to be made available for the asylum
support teams (Asylum Intervention Pool). As part of the
Asylum Intervention Pool, the Support Office shall set up a
list of interpreters. The same procedure shall apply with
regard to any subsequent changes in the profiles and the
overall number of experts of the Asylum Intervention Pool.
2. Member States shall contribute to the Asylum Intervention
Pool via a national expert pool on the basis of defined profiles
and propose experts corresponding to the required profiles.
Member States shall assist the Support Office in identifying
interpreters for the list of interpreters.
Member States may choose to deploy interpreters or to make
them available via video-conferencing.
EN29.5.2010 Official Journal of the European Union L 132/17
Article 16
Deployment
1. The home Member State shall retain its autonomy as
regards the selection of the number and the profiles of the
experts (national pool) and the duration of their deployment.
Member States shall make those experts available for
deployment at the Support Office's request unless they are
faced with a situation substantially affecting the discharge of
national duties, such as one resulting in insufficient staffing
for the performing of procedures to determine the status of
persons applying for international protection. Member States
shall, at the request of the Support Office, as soon as possible
communicate the number, names and profiles of experts from
their national pool who can be made available as soon as
possible to join an asylum support team.
2. When determining the composition of an asylum support
team, the Executive Director shall take into account the
particular circumstances confronting the requesting
Member State. The asylum support team shall be constituted
in accordance with the operating plan referred to in Article 18.
Article 17
Procedure for deciding on deployment
1. If required, the Executive Director may send the Support
Office experts to assess the situation in the requesting Member
State.
2. The Executive Director shall immediately notify the
Management Board of any request for deployment of asylum
support teams.
3. The Executive Director shall take a decision on the request
for deployment of asylum support teams as soon as possible
and no later than five working days from the date of receipt of
the request. The Executive Director shall notify the requesting
Member State and the Management Board of the decision simultaneously
in writing stating the main reasons therefor.
4. If the Executive Director decides to deploy one or more
asylum support teams, an operating plan shall immediately be
drawn up by the Support Office and the requesting
Member State in accordance with Article 18.
5. As soon as that plan has been agreed, the Executive
Director shall inform the Member States providing the experts
to be deployed of the number and profiles required. That
information shall be provided, in writing, to the national
contact points referred to in Article 19 and shall specify the
scheduled date of deployment. A copy of the operating plan
shall also be sent to them.
6. If the Executive Director is absent or indisposed, the
decisions on the deployment of the asylum support teams
shall be taken by the head of unit assuming his duties.
Article 18
Operating plan
1. The Executive Director and the requesting Member State
shall agree on an operating plan setting out in detail the
conditions for deployment of the asylum support teams. The
operating plan shall include:
(a) a description of the situation, with the modus operandi and
objectives of the deployment, including the operational
objective;
(b) the forecast duration of the teams' deployment;
(c) the geographical area of responsibility in the requesting
Member State where the teams will be deployed;
(d) a description of the tasks and special instructions for
members of the teams, including databases that they are
authorised to consult and the equipment that they may
carry in the requesting Member State; and
(e) the composition of the teams.
2. Any amendments to or adaptations of the operating plan
shall require the agreement of both the Executive Director and
the requesting Member State. The Support Office shall
immediately send a copy of the amended or adapted
operating plan to the participating Member States.
Article 19
National contact point
Each Member State shall designate a national contact point for
communication with the Support Office on all matters
pertaining to the asylum support teams.
ENL 132/18 Official Journal of the European Union 29.5.2010
Article 20
Union contact point
1. The Executive Director shall designate one or more
Support Office experts to act as the Union contact point for
coordination. The Executive Director shall notify the host
Member State of such designations.
2. The Union contact point shall act on behalf of the
Support Office in all aspects of the deployment of asylum
support teams. In particular, the Union contact point shall:
(a) act as an interface between the Support Office and the host
Member State;
(b) act as an interface between the Support Office and members
of the asylum support teams, providing assistance, on behalf
of the Support Office, on all issues relating to the conditions
of deployment of those teams;
(c) monitor the correct implementation of the operating plan;
and
(d) report to the Support Office on all aspects of the asylum
support teams' deployment.
3. The Executive Director may authorise the Union contact
point to assist in resolving any disputes concerning the implementation
of the operating plan and the deployment of asylum
support teams.
4. In discharging his duties, the Union contact point shall
take instructions only from the Support Office.
Article 21
Civil liability
1. Where members of an asylum support team are operating
in a host Member State, that Member State shall be liable in
accordance with its national law for any damage caused by
them during their operations.
2. Where such damage is caused by gross negligence or
wilful misconduct, the host Member State may approach the
home Member State in order to have any sums it has paid to
the victims or persons entitled on their behalf reimbursed by
the home Member State.
3. Without prejudice to the exercise of its rights vis-à-vis
third parties, each Member State shall waive all its claims
against the host Member State or any other Member State for
any damage it has sustained, except in cases of gross negligence
or wilful misconduct.
4. Any dispute between Member States relating to the application
of paragraphs 2 and 3 of this Article which cannot be
resolved by negotiations between them shall be submitted by
them to the Court of Justice in accordance with Article 273 of
the TFEU.
5. Without prejudice to the exercise of its rights vis-à-vis
third parties, the Support Office shall meet costs relating to
damage caused to the Support Office's equipment during
deployment, except in cases of gross negligence or wilful
misconduct.
Article 22
Criminal liability
During the deployment of an asylum support team, members of
an asylum support team shall be treated in the same way as
officials of the host Member State with regard to any criminal
offences that might be committed against them or by them.
Article 23
Costs
Where Member States make their experts available for
deployment to asylum support teams, the Support Office shall
meet costs relating to the following:
(a) travel from the home Member State to the host Member
State and from the host Member State to the home Member
State;
(b) vaccinations;
(c) special insurance cover required;
(d) health care;
(e) daily subsistence allowances, including accommodation;
(f) the Support Office's technical equipment; and
(g) experts' fees.
EN29.5.2010 Official Journal of the European Union L 132/19
CHAPTER 4
ORGANISATION OF THE SUPPORT OFFICE
Article 24
Administrative and management structure of the Support
Office
The administrative and management structure of the Support
Office shall comprise:
(a) a Management Board;
(b) an Executive Director and the staff of the Support Office.
The administrative and management structure of the Support
Office may comprise an Executive Committee, if established in
accordance with Article 29(2).
Article 25
Composition of the Management Board
1. Each Member State bound by this Regulation shall
appoint one member to the Management Board and the
Commission shall appoint two members.
2. Each member of the Management Board may be represented
or accompanied by an alternate; when accompanying a
member, the alternate member shall attend without having the
right to vote.
3. Management Board members shall be appointed on the
basis of their experience, professional responsibility and high
degree of expertise in the field of asylum.
4. A representative of the UNHCR shall be a non-voting
member of the Management Board.
5. The term of office of members of the Management Board
shall be three years. That term shall be renewable. On the expiry
of their term of office or in the event of their resignation,
members shall remain in office until their appointments are
renewed or until they are replaced.
Article 26
Chair of the Management Board
1. The Management Board shall elect a Chair and a Deputy
Chair from among its members with voting rights. The Deputy
Chair shall automatically replace the Chair if he is prevented
from attending to his duties.
2. The terms of office of the Chair and of the Deputy Chair
shall be three years and may be renewed only once. If, however,
their membership of the Management Board ends at any time
during their term of office as Chair or Deputy Chair, their term
of office shall automatically expire on that date also.
Article 27
Meetings of the Management Board
1. The meetings of the Management Board shall be convened
by the Chair. The Executive Director shall take part in the
meetings. The representative of the UNHCR shall not take
part in the meeting when the Management Board performs
the functions laid down in points (b), (h), (i), (j) and (m) of
Article 29(1) and in Article 29(2), and when the Management
Board decides to make financial resources available for financing
the activities enabling the Support Office to benefit from the
UNHCR's expertise in asylum matters as referred to in
Article 50.
2. The Management Board shall hold at least two ordinary
meetings a year. In addition, it shall meet on the initiative of its
Chair or at the request of one third of its members.
3. The Management Board may invite any person whose
opinion may be of interest to attend its meetings as an
observer.
Denmark shall be invited to attend the meetings of the
Management Board.
4. The members of the Management Board may, subject to
the provisions of its rules of procedure, be assisted by advisers
or experts.
5. The secretariat for the Management Board shall be
provided by the Support Office.
Article 28
Voting
1. Unless provided otherwise, the Management Board shall
take its decisions by an absolute majority of its members with
voting rights. Each member entitled to vote shall have one vote.
In the absence of a member, his alternate shall be entitled to
exercise his right to vote.
ENL 132/20 Official Journal of the European Union 29.5.2010
2. The Executive Director shall not vote.
3. The Chair shall take part in the voting.
4. Member States that do not fully participate in the acquis of
the Union in the field of asylum shall not vote where the
Management Board is called on to take decisions falling
within point (e) of Article 29(1) and where the technical
document in question relates exclusively to an asylum
instrument of the Union by which they are not bound.
5. The Management Board's rules of procedure shall establish
more detailed voting arrangements, in particular the circumstances
in which a member may act on behalf of another
member, and any quorum requirements, where necessary.
Article 29
Functions of the Management Board
1. The Management Board shall ensure that the Support
Office performs the duties assigned to it. It shall be the
Support Office's planning and monitoring body. In particular,
it shall:
(a) adopt its rules of procedure, by a majority of three quarters
of its members with voting rights and after receiving the
opinion of the Commission;
(b) appoint the Executive Director in accordance with
Article 30, exercise disciplinary authority over the
Executive Director and, where necessary, suspend or
dismiss him;
(c) adopt an annual general report on the Support Office's
activities and send it, by 15 June of the following year,
to the European Parliament, the Council, the Commission
and the Court of Auditors. The annual general report shall
be made public;
(d) adopt an annual report on the situation of asylum in the
Union in accordance with Article 12(1). That report shall
be presented to the European Parliament. The Council and
the Commission may request that the report to be
presented also to them;
(e) adopt the technical documents referred to in Article 12(2);
(f) by 30 September each year, on the basis of a draft put
forward by the Executive Director and after having received
the opinion of the Commission, adopt, by a majority of
three quarters of its members with voting rights, the
Support Office's work programme for the following year
and send it to the European Parliament, the Council and
the Commission. That work programme shall be adopted
in accordance with the annual budgetary procedure of the
Union and the legislative work programme of the Union in
the area of asylum;
(g) exercise its responsibilities in respect of the Support Office's
budget as laid down in Chapter 5;
(h) adopt the detailed rules for applying Regulation (EC) No
1049/2001 in accordance with Article 42 of this Regu­
lation;
(i) adopt the Support Office's staff policy in accordance with
Article 38;
(j) adopt, having requested the opinion of the Commission,
the multiannual staff policy plan;
(k) take all decisions for the purpose of fulfilling the Support
Office's mandate as laid down in this Regulation;
(l) take all decisions on the establishment and, where
necessary, the development of the information systems
provided for in this Regulation, including the information
portal referred to in point (c) of Article 4; and
(m) take all decisions on the establishment and, where
necessary, the modification of the Support Office's
internal structures.
2. The Management Board may establish an Executive
Committee to assist it and the Executive Director with regard
to the preparation of the decisions, work programme and
activities to be adopted by the Management Board and when
necessary, because of urgency, to take certain provisional
decisions on behalf of the Management Board.
Such an Executive Committee shall consist of eight members
appointed from among the members of the Management Board
amongst whom one of the Commission members of the
Management Board. The term of office of members of the
Executive Committee shall be the same as that of members of
the Management Board.
EN29.5.2010 Official Journal of the European Union L 132/21
At the request of the Executive Committee, UNHCR representatives
or any other person whose opinion might be of interest
may attend meetings of the Executive Committee without the
right to vote.
The Support Office shall lay down the operating procedures of
the Executive Committee in the Support Office's rules of
procedure and make those procedures public.
Article 30
Appointment of the Executive Director
1. The Executive Director shall be appointed for a term of
five years by the Management Board from among the suitable
candidates identified in an open competition organised by the
Commission. That selection procedure will provide for publication
in the Official Journal of the European Union and elsewhere,
of a call for expressions of interest. The Management Board may
require a new procedure if it is not satisfied with the suitability
of any of the candidates retained in the first list. The Executive
Director shall be appointed on the basis of his personal merits,
experience in the field of asylum and administrative and
management skills. Before appointment, the candidate selected
by the Management Board shall be invited to make a statement
before the competent committee or committees of the European
Parliament and answer questions put by its or their members.
After that statement, the European Parliament may adopt an
opinion setting out its view relating to the selected candidate.
The Management Board shall inform the European Parliament
of the manner in which that opinion is taken into account. The
opinion shall be treated as personal and confidential until the
appointment of the candidate.
In the course of the last nine months of the Executive Director's
five-year term, the Commission shall carry out an evaluation
focusing on:
— the performance of the Executive Director; and
— the Support Office's duties and requirements in coming
years.
2. The Management Board, taking into account that
evaluation, may extend the term of office of the Executive
Director once for not more than three years but only where
such an extension is justified by the purpose and requirements
of the Support Office.
3. The Management Board shall inform the European
Parliament of its intention to extend the Executive Director's
term of office. In the month prior to such extension of his
term of office the Executive Director shall be invited to make
a statement before the competent committee or committees of
the European Parliament and answer questions put by its or
their members.
Article 31
Duties of the Executive Director
1. The Support Office shall be managed by its Executive
Director, who shall be independent in the performance of his
duties. The Executive Director shall be accountable to the
Management Board for his activities.
2. Without prejudice to the powers of the Commission, the
Management Board, or the Executive Committee, if established,
the Executive Director shall neither seek nor take instructions
from any government or from any other body.
3. The Executive Director shall report to the European
Parliament on the performance of his duties when invited.
The Council may invite the Executive Director to report on
the performance of his duties.
4. The Executive Director shall be the legal representative of
the Support Office.
5. The Executive Director may be assisted by one or more
heads of unit. If the Executive Director is absent or indisposed, a
head of unit shall take his place.
6. The Executive Director shall be responsible for the administrative
management of the Support Office and for the implementation
of the duties assigned to it by this Regulation. In
particular, the Executive Director shall be responsible for:
(a) the day-to-day administration of the Support Office;
(b) establishing the Support Office's work programmes, after
having received the opinion of the Commission;
(c) implementing the work programmes and decisions adopted
by the Management Board;
ENL 132/22 Official Journal of the European Union 29.5.2010
(d) drafting reports on countries of origin as provided for in
point (b) of Article 4;
(e) preparing the Support Office's draft financial regulation for
adoption by the Management Board under Article 37, and
its implementing rules;
(f) preparing the Support Office's draft statement of estimates
of revenue and expenditure and of implementation of its
budget;
(g) exercising the powers laid down in Article 38 in respect of
Support Office staff;
(h) taking all decisions on the management of the information
systems provided for in this Regulation, including the
information portal referred to in point (c) of Article 4;
(i) taking all decisions on the management of the Support
Office's internal structures; and
(j) the coordination and operation of the Consultative Forum
referred to in Article 51. To this end, the Executive Director
shall, in consultation with relevant civil society organisations,
first adopt a plan for installing the Consultative
Forum. Once formally installed, the Executive Director
shall, in consultation with the Consultative Forum, adopt
an operational plan which will include rules on the
frequency and nature of consultation and the organisational
mechanisms for implementing Article 51. Transparent
criteria for ongoing participation in the Consultative
Forum shall also be agreed.
Article 32
Working parties
1. As part of its mandate as laid down in this Regulation, the
Support Office may set up working parties composed of experts
from competent Member State authorities operating in the field
of asylum, including judges. The Support Office shall set up
working parties for the purposes of point (e) of Article 4 and
Article 12(2). Experts may be replaced by alternates, appointed
at the same time.
2. The Commission shall take part in the working parties as
of right. UNHCR representatives may attend all or part of the
meetings of the Support Office's working parties, depending on
the nature of the issues under discussion.
3. The working parties may invite any person whose opinion
may be of interest to attend meetings, including representatives
of civil society working in the field of asylum.
CHAPTER 5
FINANCIAL PROVISIONS
Article 33
Budget
1. Estimates of all the revenue and expenditure of the
Support Office shall be prepared for each financial year, corresponding
to the calendar year, and shall be shown in the
Support Office's budget.
2. The Support Office's budget shall be balanced in terms of
revenue and of expenditure.
3. Without prejudice to other resources, the Support Office's
revenue shall comprise:
(a) a contribution from the Union entered in the general budget
of the European Union;
(b) any voluntary contribution from the Member States;
(c) charges for publications and any service provided by the
Support Office;
(d) a contribution from the associate countries.
4. The expenditure of the Support Office shall include staff
remuneration, administrative and infrastructure expenses,
operating costs.
Article 34
Establishment of the budget
1. Each year the Executive Director shall draw up a draft
statement of estimates of the Support Office's revenue and
expenditure together for the following financial year, including
the establishment plan, and send it to the Management Board.
2. The Management Board shall, on the basis of that draft,
produce a provisional draft estimate of the Support Office's
revenue and expenditure for the following financial year.
EN29.5.2010 Official Journal of the European Union L 132/23
3. The provisional draft estimate of the Support Office's
revenue and expenditure shall be sent to the Commission by
10 February each year. The Management Board shall send a
final draft estimate, which shall include a draft establishment
plan, to the Commission by 31 March.
4. The Commission shall send the statement of estimates to
the European Parliament and the Council (the budgetary
authority) together with the draft general budget of the
European Union.
5. On the basis of the statement of estimates, the
Commission shall enter in the draft general budget of the
European Union the estimates it considers necessary for the
establishment plan and the amount of the subsidy to be
charged to the general budget, which it shall place before the
budgetary authority in accordance with Articles 313 and 314 of
the TFEU.
6. The budgetary authority shall authorise the appropriations
for the Support Office's subsidy.
7. The budgetary authority shall adopt the Support Office's
establishment plan.
8. The Support Office's budget shall be adopted by the
Management Board. It shall become final following final
adoption of the general budget of the European Union.
Where necessary, it shall be adjusted accordingly.
9. The Management Board shall, as soon as possible, notify
the budgetary authority of its intention to implement any
project which may have significant financial implications for
the funding of the budget, in particular any projects relating
to immovable property such as the rental or purchase of
buildings. It shall inform the Commission accordingly.
10. Where a branch of the budgetary authority has notified
its intention to deliver an opinion, it shall send its opinion to
the Management Board within a period of six weeks from the
date of the project's notification.
Article 35
Implementation of the budget
1. The Executive Director shall implement the Support
Office's budget.
2. Each year the Executive Director shall send to the
budgetary authority all information relevant to the findings of
the evaluation procedures.
Article 36
Presentation of accounts and discharge
1. By 1 March following each financial year, the Support
Office's accounting officer shall communicate the provisional
accounts to the Commission's Accounting Officer, together
with a report on the budgetary and financial management for
that financial year. The Commission's Accounting Officer shall
consolidate the provisional accounts of the institutions and
decentralised bodies in accordance with Article 128 of the
Financial Regulation.
2. By 31 March following each financial year, the
Commission's accounting officer shall send the Support
Office's provisional accounts to the Court of Auditors,
together with a report on the budgetary and financial
management for that financial year. The report on the
budgetary and financial management for that financial year
shall also be sent to the European Parliament and the Council.
3. On receipt of the Court of Auditors' observations on the
Support Office's provisional accounts pursuant to Article 129 of
Financial Regulation, the Executive Director shall draw up the
Support Office's final accounts under his own responsibility and
submit them to the Management Board for an opinion.
4. The Management Board shall deliver an opinion on the
Support Office's final accounts.
5. The Executive Director shall, by 1 July following each
financial year, send the final accounts to the European
Parliament, the Council, the Commission and the Court of
Auditors, together with the Management Board's opinion.
6. The final accounts shall be published.
7. The Executive Director shall send the Court of Auditors a
reply to its observations by 30 September. He shall also send
this reply to the Management Board.
8. The Executive Director shall submit to the European
Parliament, at the latter's request, any information required for
the smooth application of the discharge procedure for the
financial year in question, as laid down in Article 146(3) of
Financial Regulation.
ENL 132/24 Official Journal of the European Union 29.5.2010
9. On a recommendation from the Council acting by a
qualified majority, the European Parliament, shall, before 15
May of year N + 2, give a discharge to the Executive Director
in respect of the implementation of the budget for year N.
Article 37
Financial regulation
The financial regulation applicable to the Support Office shall
be adopted by the Management Board after consultation with
the Commission. It shall not depart from Commission
Regulation (EC, Euratom) No 2343/2002 of 19 November
2002 on the framework Financial Regulation for the bodies
referred to in Article 185 of Council Regulation (EC,
Euratom) No 1605/2002 on the Financial Regulation applicable
to the general budget of the European Communities (1) unless
such departure is specifically required for the Support Office's
operation and the Commission has given its prior consent.
CHAPTER 6
STAFF PROVISIONS
Article 38
Staff
1. The Staff Regulations of Officials of the European
Communities and the Conditions of Employment of Other
Servants of the European Communities laid down in
Regulation (EEC, Euratom, ECSC) No 259/68 (2) (the Staff Regulations)
and the rules adopted jointly by the Union's institutions
for the purpose of applying these Staff Regulations and
Conditions of Employment shall apply to the staff of the
Support Office, including the Executive Director.
2. The Management Board shall, in agreement with the
Commission, adopt the necessary implementing measures
referred to in Article 110 of the Staff Regulations.
3. The powers conferred on the appointing authority by the
Staff Regulations and on the authority entitled to conclude
contracts by the Conditions of Employment of Other Servants
shall be exercised by the Support Office in respect of its own
staff.
4. The Management Board shall adopt provisions to allow
national experts from Member States to be employed on
secondment to the Support Office.
Article 39
Privileges and immunities
The Protocol on the Privileges and Immunities of the European
Union shall apply to the Support Office.
CHAPTER 7
GENERAL PROVISIONS
Article 40
Legal status
1. The Support Office shall be a body of the Union. It shall
have legal personality.
2. In each of the Member States the Support Office shall
enjoy the most extensive legal capacity accorded to legal
persons under their laws. It may, in particular, acquire and
dispose of movable and immovable property and be party to
legal proceedings.
3. The Support Office shall be represented by its Executive
Director.
Article 41
Language arrangements
1. The provisions laid down in Regulation No 1 of 15 April
1958 determining the languages to be used in the European
Economic Community (3) shall apply to the Support Office.
2. Without prejudice to decisions taken on the basis of
Article 342 of the TFEU, the annual general report on the
Support Office's activities and the annual work programme
referred to in points (c) and (f) of Article 29(1) shall be
produced in all the official languages of the institutions of the
European Union.
3. The translation services required for the functioning of the
Support Office shall be provided by the Translation Centre of
the bodies of the European Union.
Article 42
Access to documents
1. Regulation (EC) No 1049/2001 shall apply to documents
held by the Support Office.
2. The Management Board shall, within six months of the
date of its first meeting, adopt the detailed rules for applying
Regulation (EC) No 1049/2001.
EN29.5.2010 Official Journal of the European Union L 132/25
(1) OJ L 357, 31.12.2002, p. 72.
(2) OJ L 56, 4.3.1968, p. 1. (3) OJ 17, 6.10.1958, p. 385.
3. Decisions taken by the Support Office under Article 8 of
Regulation (EC) No 1049/2001 may form the subject of a
complaint to the Ombudsman or of an action before the
Court of Justice of the European Union, under the conditions
laid down in Articles 228 and 263 of the TFEU respectively.
4. The processing of data of a personal nature by the
Support Office shall be subject to the Regulation (EC) No
45/2001.
Article 43
Security rules on the protection of classified information
and non-classified sensitive information
1. The Support Office shall apply the security principles
contained in Commission Decision 2001/844/EC, ECSC,
Euratom of 29 November 2001 amending its internal Rules
of Procedure (1), inter alia, the provisions for the exchange,
processing and storage of classified information.
2. The Support Office shall also apply the security principles
relating to the processing of non-classified sensitive information
as adopted and implemented by the Commission.
Article 44
Combating fraud
1. In order to combat fraud, corruption and other unlawful
activities the Regulation (EC) No 1073/1999 shall apply without
restriction.
2. The Support Office shall accede to the Interinstitutional
Agreement of 25 May 1999 and shall issue, without delay, the
appropriate provisions applicable to all the employees of the
Support Office.
3. The decisions concerning funding and the implementing
agreements and instruments resulting from them shall explicitly
stipulate that the Court of Auditors and OLAF may carry out, if
necessary, on-the-spot checks among recipients of the Support
Office's funding and the agents responsible for allocation
thereof.
Article 45
Provisions on liability
1. The Support Office's contractual liability shall be governed
by the law applicable to the contract in question.
2. The Court of Justice of the European Union shall have
jurisdiction to give judgment pursuant to any arbitration clause
contained in a contract concluded by the Support Office.
3. In the case of non-contractual liability, the Support Office
shall, in accordance with the general principles common to the
laws of the Member States, make good any damage caused by
its departments or by its staff in the performance of their duties.
4. The Court of Justice of the European Union shall have
jurisdiction in disputes over compensation for damages referred
to in paragraph 3.
5. The personal liability of its staff towards the Support
Office shall be governed by the provisions laid down in the
Staff Regulations applicable to them.
Article 46
Evaluation and review
1. No later than 19 June 2014, the Support Office shall
commission an independent external evaluation of its
achievements on the basis of terms of reference issued by the
Management Board in agreement with the Commission. That
evaluation shall cover the Support Office's impact on practical
cooperation on asylum and on the CEAS. The evaluation shall
take due regard to progress made, within its mandate, including
assessing whether additional measures are necessary to ensure
effective solidarity and sharing of responsibilities with Member
States subject to particular pressure. It shall, in particular,
address the possible need to modify the mandate of the
Support Office, including the financial implications of any
such modification and shall also examine whether the
management structure is appropriate for carrying out the
Support Office's duties. The evaluation shall take into account
the views of stakeholders, at both Union and national level.
2. The Management Board, in agreement with the
Commission, shall decide the timing of future evaluations,
taking into account the findings of the evaluation referred to
in paragraph 1.
Article 47
Administrative controls
The activities of the Support Office shall be subject to the
controls of the Ombudsman in accordance with Article 228
of the TFEU.
ENL 132/26 Official Journal of the European Union 29.5.2010
(1) OJ L 317, 3.12.2001, p. 1.
Article 48
Cooperation with Denmark
The Support Office shall facilitate operational cooperation with
Denmark, including the exchange of information and best
practices in matters covered by its activities.
Article 49
Cooperation with third and associate countries
1. The Support Office shall be open to the participation of
Iceland, Liechtenstein, Norway and Switzerland as observers.
Arrangements shall be made, specifying in particular the
nature, extent and manner in which those countries are to
participate in the Support Office's work. Such arrangements
shall include provisions relating to participation in initiatives
undertaken by the Support Office, financial contributions and
staff. As regards staff matters, those arrangements shall, in any
event, comply with the Staff Regulations.
2. In matters connected with its activities and to the extent
required for the fulfilment of its duties the Support Office shall,
in agreement with the Commission and within the limits of its
mandate, facilitate operational cooperation between Member
States and third countries other than those referred to in
paragraph 1 within the framework of the Union's external
relations policy, and may also cooperate with the authorities
of third countries competent in technical aspects of the areas
covered by this Regulation, within the framework of working
arrangements concluded with those authorities, in accordance
with the relevant provisions of the TFEU.
Article 50
Cooperation with the UNHCR
The Support Office shall cooperate with the UNHCR in the
areas governed by this Regulation within the framework of
working arrangements concluded with it. From the side of the
Support Office, the Management Board shall decide on the
working arrangements including their budgetary implications.
In addition, the Management Board may decide that the
Support Office can make available financial resources to cover
the expenses of the UNHCR for activities that are not provided
for in the working arrangements. They shall form part of the
special cooperation relations established between the Support
Office and the UNHCR in accordance with this Article and
with Article 2(5), Article 5, Article 9(1), Article 25(4) and
Article 32(2). In accordance with Article 75 of Regulation
(EC, Euratom) No 2343/2002, the relevant provisions of the
Financial Regulation and its implementing rules shall apply.
Article 51
Consultative Forum
1. The Support Office shall maintain a close dialogue with
relevant civil society organisations and relevant competent
bodies operating in the field of asylum policy at local,
regional, national, European or international level and shall
set up a Consultative Forum for this purpose.
2. The Consultative Forum shall constitute a mechanism for
the exchange of information and pooling of knowledge. It shall
ensure there is a close dialogue between the Support Office and
relevant stakeholders.
3. The Consultative Forum shall be open to relevant stakeholders
in accordance with paragraph 1. The Support Office
shall address the members of the Consultative Forum in
accordance with specific needs related to areas identified as
priority for the Support Office's work.
The UNHCR shall be a member of the Consultative Forum ex
officio.
4. The Support Office shall call upon the Consultative Forum
in particular to:
(a) make suggestions to the Management Board on the annual
work programme to be adopted under point (f) of
Article 29(1);
(b) provide feedback to the Management Board and suggest
measures as follow-up to the annual report referred to in
point (c) of Article 29(1) and the annual report on the
situation of asylum in the Union referred to in
Article 12(1); and
(c) communicate conclusions and recommendations of
conferences, seminars and meetings relevant to the work
of the Support Office to the Executive Director and the
Management Board.
5. The Consultative Forum shall meet at least once a year.
Article 52
Cooperation with Frontex, FRA, other bodies of the Union
and with international organisations
The Support Office shall cooperate with the bodies of the
Union having activities relating to its field of activity, and in
particular with Frontex and FRA and with international organisations
competent in matters covered by this Regulation, within
the framework of working arrangements concluded with those
bodies, in accordance with the TFEU and the provisions on the
competence of those bodies.
EN29.5.2010 Official Journal of the European Union L 132/27
Cooperation shall create synergies between the bodies
concerned and prevent any duplication of effort in the work
carried out pursuant to their mandate.
Article 53
Headquarters agreement and operating conditions
The necessary arrangements concerning the accommodation to
be provided for the Support Office in the host Member State
and the facilities to be made available by that Member State
together with the specific rules applicable in the Support
Office's host Member State to the Executive Director,
members of the Management Board, Support Office staff and
members of their families shall be laid down in a headquarters
agreement between the Support Office and the host Member
State concluded once the Management Board's approval is
obtained. The host Member State shall provide the best
possible conditions to ensure the proper functioning of the
Support Office, including multilingual, European-oriented
schooling and appropriate transport connections.
Article 54
Start of the Support Office's activities
The Support Office shall become fully operational by 19 June
2011.
The Commission shall be responsible for the establishment and
initial operation of the Support Office until it has the operational
capacity to implement its own budget.
To that end:
— until such time as the Executive Director takes up his duties
following his appointment by the Management Board in
accordance with Article 30, a Commission official may act
as interim Director and exercise the duties assigned to the
Executive Director;
— Commission officials may carry out the duties assigned to
the Support Office under the responsibility of its interim
Director or Executive Director.
The interim Director may authorise all payments covered by
appropriations entered in the Support Office's budget after
approval by the Management Board and may conclude
contracts, including staff contracts, following the adoption of
the Support Office's establishment plan.
Article 55
Entry into force
This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union.
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.
Done at Strasbourg, 19 May 2010.
For the European Parliament
The President
J. BUZEK
For the Council
The President
D. LÓPEZ GARRIDO
ENL 132/28 Official Journal of the European Union 29.5.2010
EN Official Journal of the European Communities 7.8.2001L 212/12
COUNCIL DIRECTIVE 2001/55/EC
of 20 July 2001
on minimum standards for giving temporary protection in the event of a mass influx of displaced
persons and on measures promoting a balance of efforts between Member States in receiving such
persons and bearing the consequences thereof
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular point 2(a) and (b) of Article 63
thereof,
Having regard to the proposal from the Commission (1)
Having regard to the opinion of the European Parliament (2
),
Having regard to the opinion of the Economic and Social
Committee (3),
Having regard to the opinion of the Committee of the
Regions (4
),
Whereas:
(1) The preparation of a common policy on asylum,
including common European arrangements for asylum,
is a constituent part of the European Union's objective
of establishing progressively an area of freedom, security
and justice open to those who, forced by circumstances,
legitimately seek protection in the European Union.
(2) Cases of mass influx of displaced persons who cannot
return to their country of origin have become more
substantial in Europe in recent years. In these cases it
may be necessary to set up exceptional schemes to offer
them immediate temporary protection.
(3) In the conclusions relating to persons displaced by the
conflict in the former Yugoslavia adopted by the Ministers
responsible for immigration at their meetings in
London on 30 November and 1 December 1992 and
Copenhagen on 1 and 2 June 1993, the Member States
and the Community institutions expressed their concern
at the situation of displaced persons.
(4) On 25 September 1995 the Council adopted a Resolution
on burden-sharing with regard to the admission and
residence of displaced persons on a temporary basis (5),
and, on 4 March 1996, adopted Decision 96/198/JHA
on an alert and emergency procedure for burden-sharing
with regard to the admission and residence of displaced
persons on a temporary basis (6).
(5) The Action Plan of the Council and the Commission of
3 December 1998 (7) provides for the rapid adoption, in
accordance with the Treaty of Amsterdam, of minimum
standards for giving temporary protection to displaced
persons from third countries who cannot return to their
country of origin and of measures promoting a balance
of effort between Member States in receiving and
bearing the consequences of receiving displaced persons.
(6) On 27 May 1999 the Council adopted conclusions on
displaced persons from Kosovo. These conclusions call
on the Commission and the Member States to learn the
lessons of their response to the Kosovo crisis in order to
establish the measures in accordance with the Treaty.
(7) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, acknowledged the need to
reach agreement on the issue of temporary protection
for displaced persons on the basis of solidarity between
Member States.
(8) It is therefore necessary to establish minimum standards
for giving temporary protection in the event of a mass
influx of displaced persons and to take measures to
promote a balance of efforts between the Member States
in receiving and bearing the consequences of receiving
such persons.
(9) Those standards and measures are linked and interdependent
for reasons of effectiveness, coherence and solidarity
and in order, in particular, to avert the risk of
secondary movements. They should therefore be enacted
in a single legal instrument.
(10) This temporary protection should be compatible with
the Member States' international obligations as regards
refugees. In particular, it must not prejudge the recognition
of refugee status pursuant to the Geneva Convention
of 28 July 1951 on the status of refugees, as
amended by the New York Protocol of 31 January 1967,
ratified by all the Member States.
(1
) OJ C 311 E, 31.10.2000, p. 251.
(2
) Opinion delivered on 13 March 2001 (not yet published in the
Official Journal).
(3
) OJ C 155, 29.5.2001, p. 21.
(4) Opinion delivered on 13 June 2001 (not yet published in the Official
Journal). (6) OJ L 63, 13.3.1996, p. 10.
(5
) OJ C 262, 7.10.1995, p. 1. (7
) OJ C 19, 20.1.1999, p. 1.
EN Official Journal of the European Communities7.8.2001 L 212/13
(11) The mandate of the United Nations High Commissioner
for Refugees regarding refugees and other persons in
need of international protection should be respected,
and effect should be given to Declaration No 17,
annexed to the Final Act to the Treaty of Amsterdam, on
Article 63 of the Treaty establishing the European
Community which provides that consultations are to be
established with the United Nations High Commissioner
for Refugees and other relevant international organisations
on matters relating to asylum policy.
(12) It is in the very nature of minimum standards that
Member States have the power to introduce or maintain
more favourable provisions for persons enjoying temporary
protection in the event of a mass influx of displaced
persons.
(13) Given the exceptional character of the provisions established
by this Directive in order to deal with a mass
influx or imminent mass influx of displaced persons
from third countries who are unable to return to their
country of origin, the protection offered should be of
limited duration.
(14) The existence of a mass influx of displaced persons
should be established by a Council Decision, which
should be binding in all Member States in relation to the
displaced persons to whom the Decision applies. The
conditions for the expiry of the Decision should also be
established.
(15) The Member States' obligations as to the conditions of
reception and residence of persons enjoying temporary
protection in the event of a mass influx of displaced
persons should be determined. These obligations should
be fair and offer an adequate level of protection to those
concerned.
(16) With respect to the treatment of persons enjoying
temporary protection under this Directive, the Member
States are bound by obligations under instruments of
international law to which they are party and which
prohibit discrimination.
(17) Member States should, in concert with the Commission,
enforce adequate measures so that the processing of
personal data respects the standard of protection of
Directive 95/46/EC of the European Parliament and 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 (1).
(18) Rules should be laid down to govern access to the
asylum procedure in the context of temporary protection
in the event of a mass influx of displaced persons,
in conformity with the Member States' international
obligations and with the Treaty.
(19) Provision should be made for principles and measures
governing the return to the country of origin and the
measures to be taken by Member States in respect of
persons whose temporary protection has ended.
(20) Provision should be made for a solidarity mechanism
intended to contribute to the attainment of a balance of
effort between Member States in receiving and bearing
the consequences of receiving displaced persons in the
event of a mass influx. The mechanism should consist of
two components. The first is financial and the second
concerns the actual reception of persons in the Member
States.
(21) The implementation of temporary protection should be
accompanied by administrative cooperation between the
Member States in liaison with the Commission.
(22) It is necessary to determine criteria for the exclusion of
certain persons from temporary protection in the event
of a mass influx of displaced persons.
(23) Since the objectives of the proposed action, namely to
establish minimum standards for giving temporary
protection in the event of a mass influx of displaced
persons and measures promoting a balance of efforts
between the Member States in receiving and bearing the
consequences of receiving such persons, cannot be sufficiently
attained by the Member States and can therefore,
by reason of the scale or effects of the proposed 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 Directive does not go beyond
what is necessary in order to achieve those objectives.
(24) 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
gave notice, by letter of 27 September 2000, of its wish
to take part in the adoption and application of this
Directive.
(25) Pursuant to Article 1 of the said Protocol, Ireland is not
participating in the adoption of this Directive. Consequently
and without prejudice to Article 4 of the aforementioned
Protocol, the provisions of this Directive do
not apply to Ireland.
(26) 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 is not participating in the
adoption of this Directive, and is therefore not bound by
it nor subject to its application,(1) OJ L 281, 23.11.1995, p. 31.
EN Official Journal of the European Communities 7.8.2001L 212/14
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
General provisions
Article 1
The purpose of this Directive is to establish minimum standards
for giving temporary protection in the event of a mass
influx of displaced persons from third countries who are
unable to return to their country of origin and to promote a
balance of effort between Member States in receiving and
bearing the consequences of receiving such persons.
Article 2
For the purposes of this Directive:
(a) ‘temporary protection’ means a procedure of exceptional
character to provide, in the event of a mass influx or
imminent mass influx of displaced persons from third
countries who are unable to return to their country of
origin, immediate and temporary protection to such
persons, in particular if there is also a risk that the asylum
system will be unable to process this influx without adverse
effects for its efficient operation, in the interests of the
persons concerned and other persons requesting protec-
tion;
(b) ‘Geneva Convention’ means the Convention of 28 July
1951 relating to the status of refugees, as amended by the
New York Protocol of 31 January 1967;
(c) ‘displaced persons’ means third-country nationals or stateless
persons who have had to leave their country or region
of origin, or have been evacuated, in particular in response
to an appeal by international organisations, and are unable
to return in safe and durable conditions because of the
situation prevailing in that country, who may fall within
the scope of Article 1A of the Geneva Convention or other
international or national instruments giving international
protection, in particular:
(i) persons who have fled areas of armed conflict or
endemic violence;
(ii) persons at serious risk of, or who have been the victims
of, systematic or generalised violations of their human
rights;
(d) ‘mass influx’ means arrival in the Community of a large
number of displaced persons, who come from a specific
country or geographical area, whether their arrival in the
Community was spontaneous or aided, for example
through an evacuation programme;
(e) ‘refugees’ means third-country nationals or stateless persons
within the meaning of Article 1A of the Geneva Conven-
tion;
(f) ‘unaccompanied minors’ means third-country nationals or
stateless persons below the age of eighteen, who arrive on
the territory of the Member States unaccompanied by an
adult responsible for them whether by law or custom, and
for as long as they are not effectively taken into the care of
such a person, or minors who are left unaccompanied after
they have entered the territory of the Member States;
(g) ‘residence permit’ means any permit or authorisation issued
by the authorities of a Member State and taking the form
provided for in that State's legislation, allowing a third
country national or a stateless person to reside on its
territory;
(h) ‘sponsor’ means a third-country national enjoying temporary
protection in a Member State in accordance with a
decision taken under Article 5 and who wants to be joined
by members of his or her family.
Article 3
1. Temporary protection shall not prejudge recognition of
refugee status under the Geneva Convention.
2. Member States shall apply temporary protection with due
respect for human rights and fundamental freedoms and their
obligations regarding non-refoulement.
3. The establishment, implementation and termination of
temporary protection shall be the subject of regular consultations
with the Office of the United Nations High Commissioner
for Refugees (UNHCR) and other relevant international organ-
isations.
4. This Directive shall not apply to persons who have been
accepted under temporary protection schemes prior to its entry
into force.
5. This Directive shall not affect the prerogative of the
Member States to adopt or retain more favourable conditions
for persons covered by temporary protection.
CHAPTER II
Duration and implementation of temporary protection
Article 4
1. Without prejudice to Article 6, the duration of temporary
protection shall be one year. Unless terminated under the terms
of Article 6(1)(b), it may be extended automatically by six
monthly periods for a maximum of one year.
2. Where reasons for temporary protection persist, the
Council may decide by qualified majority, on a proposal from
the Commission, which shall also examine any request by a
Member State that it submit a proposal to the Council, to
extend that temporary protection by up to one year.
EN Official Journal of the European Communities7.8.2001 L 212/15
Article 5
1. The existence of a mass influx of displaced persons shall
be established by a Council Decision adopted by a qualified
majority on a proposal from the Commission, which shall also
examine any request by a Member State that it submit a
proposal to the Council.
2. The Commission proposal shall include at least:
(a) a description of the specific groups of persons to whom the
temporary protection will apply;
(b) the date on which the temporary protection will take effect;
(c) an estimation of the scale of the movements of displaced
persons.
3. The Council Decision shall have the effect of introducing
temporary protection for the displaced persons to which it
refers, in all the Member States, in accordance with the provisions
of this Directive. The Decision shall include at least:
(a) a description of the specific groups of persons to whom the
temporary protection applies;
(b) the date on which the temporary protection will take effect;
(c) information received from Member States on their reception
capacity;
(d) information from the Commission, UNHCR and other relevant
international organisations.
4. The Council Decision shall be based on:
(a) an examination of the situation and the scale of the movements
of displaced persons;
(b) an assessment of the advisability of establishing temporary
protection, taking into account the potential for emergency
aid and action on the ground or the inadequacy of such
measures;
(c) information received from the Member States, the Commission,
UNHCR and other relevant international organ-
isations.
5. The European Parliament shall be informed of the
Council Decision.
Article 6
1. Temporary protection shall come to an end:
(a) when the maximum duration has been reached; or
(b) at any time, by Council Decision adopted by a qualified
majority on a proposal from the Commission, which shall
also examine any request by a Member State that it submit
a proposal to the Council.
2. The Council Decision shall be based on the establishment
of the fact that the situation in the country of origin is such as
to permit the safe and durable return of those granted temporary
protection with due respect for human rights and fundamental
freedoms and Member States' obligations regarding
non-refoulement. The European Parliament shall be informed
of the Council Decision.
Article 7
1. Member States may extend temporary protection as
provided for in this Directive to additional categories of
displaced persons over and above those to whom the Council
Decision provided for in Article 5 applies, where they are
displaced for the same reasons and from the same country or
region of origin. They shall notify the Council and the
Commission immediately.
2. The provisions of Articles 24, 25 and 26 shall not apply
to the use of the possibility referred to in paragraph 1, with the
exception of the structural support included in the European
Refugee Fund set up by Decision 2000/596/EC (1), under the
conditions laid down in that Decision.
CHAPTER III
Obligations of the Member States towards persons
enjoying temporary protection
Article 8
1. The Member States shall adopt the necessary measures to
provide persons enjoying temporary protection with residence
permits for the entire duration of the protection. Documents or
other equivalent evidence shall be issued for that purpose.
2. Whatever the period of validity of the residence permits
referred to in paragraph 1, the treatment granted by the
Member States to persons enjoying temporary protection may
not be less favourable than that set out in Articles 9 to 16.
3. The Member States shall, if necessary, provide persons to
be admitted to their territory for the purposes of temporary
protection with every facility for obtaining the necessary visas,
including transit visas. Formalities must be reduced to a
minimum because of the urgency of the situation. Visas should
be free of charge or their cost reduced to a minimum.
Article 9
The Member States shall provide persons enjoying temporary
protection with a document, in a language likely to be understood
by them, in which the provisions relating to temporary
protection and which are relevant to them are clearly set out.
Article 10
To enable the effective application of the Council Decision
referred to in Article 5, Member States shall register the
personal data referred to in Annex II, point (a), with respect to
the persons enjoying temporary protection on their territory.
(1) OJ L 252, 6.10.2000, p. 12.
EN Official Journal of the European Communities 7.8.2001L 212/16
Article 11
A Member State shall take back a person enjoying temporary
protection on its territory, if the said person remains on, or,
seeks to enter without authorisation onto, the territory of
another Member State during the period covered by the
Council Decision referred to in Article 5. Member States may,
on the basis of a bilateral agreement, decide that this Article
should not apply.
Article 12
The Member States shall authorise, for a period not exceeding
that of temporary protection, persons enjoying temporary
protection to engage in employed or self-employed activities,
subject to rules applicable to the profession, as well as in
activities such as educational opportunities for adults, vocational
training and practical workplace experience. For reasons
of labour market policies, Member States may give priority to
EU citizens and citizens of States bound by the Agreement on
the European Economic Area and also to legally resident thirdcountry
nationals who receive unemployment benefit. The
general law in force in the Member States applicable to remuneration,
access to social security systems relating to employed
or self-employed activities and other conditions of employment
shall apply.
Article 13
1. The Member States shall ensure that persons enjoying
temporary protection have access to suitable accommodation
or, if necessary, receive the means to obtain housing.
2. The Member States shall make provision for persons
enjoying temporary protection to receive necessary assistance
in terms of social welfare and means of subsistence, if they do
not have sufficient resources, as well as for medical care.
Without prejudice to paragraph 4, the assistance necessary for
medical care shall include at least emergency care and essential
treatment of illness.
3. Where persons enjoying temporary protection are
engaged in employed or self-employed activities, account shall
be taken, when fixing the proposed level of aid, of their ability
to meet their own needs.
4. The Member States shall provide necessary medical or
other assistance to persons enjoying temporary protection who
have special needs, such as unaccompanied minors or persons
who have undergone torture, rape or other serious forms of
psychological, physical or sexual violence.
Article 14
1. The Member States shall grant to persons under 18 years
of age enjoying temporary protection access to the education
system under the same conditions as nationals of the host
Member State The Member States may stipulate that such
access must be confined to the state education system.
2. The Member States may allow adults enjoying temporary
protection access to the general education system.
Article 15
1. For the purpose of this Article, in cases where families
already existed in the country of origin and were separated due
to circumstances surrounding the mass influx, the following
persons shall be considered to be part of a family:
(a) the spouse of the sponsor or his/her unmarried partner in a
stable relationship, where the legislation or practice of the
Member State concerned treats unmarried couples in a way
comparable to married couples under its law relating to
aliens; the minor unmarried children of the sponsor or of
his/her spouse, without distinction as to whether they were
born in or out of wedlock or adopted;
(b) other close relatives who lived together as part of the
family unit at the time of the events leading to the mass
influx, and who were wholly or mainly dependent on the
sponsor at the time.
2. In cases where the separate family members enjoy temporary
protection in different Member States, Member States shall
reunite family members where they are satisfied that the family
members fall under the description of paragraph 1(a), taking
into account the wish of the said family members. Member
States may reunite family members where they are satisfied that
the family members fall under the description of paragraph
1(b), taking into account on a case by case basis the extreme
hardship they would face if the reunification did not take place.
3. Where the sponsor enjoys temporary protection in one
Member State and one or some family members are not yet in
a Member State, the Member State where the sponsor enjoys
temporary protection shall reunite family members, who are in
need of protection, with the sponsor in the case of family
members where it is satisfied that they fall under the description
of paragraph 1(a). The Member State may reunite family
members, who are in need of protection, with the sponsor in
the case of family members where it is satisfied that they fall
under the description of paragraph 1(b), taking into account on
a case by case basis the extreme hardship which they would
face if the reunification did not take place.
4. When applying this Article, the Member States shall
taken into consideration the best interests of the child.
5. The Member States concerned shall decide, taking
account of Articles 25 and 26, in which Member State the
reunification shall take place.
EN Official Journal of the European Communities7.8.2001 L 212/17
6. Reunited family members shall be granted residence
permits under temporary protection. Documents or other
equivalent evidence shall be issued for that purpose. Transfers
of family members onto the territory of another Member State
for the purposes of reunification under paragraph 2, shall result
in the withdrawal of the residence permits issued, and the
termination of the obligations towards the persons concerned
relating to temporary protection, in the Member State of depar-
ture.
7. The practical implementation of this Article may involve
cooperation with the international organisations concerned.
8. A Member State shall, at the request of another Member
State, provide information, as set out in Annex II, on a person
receiving temporary protection which is needed to process a
matter under this Article.
Article 16
1. The Member States shall as soon as possible take measures
to ensure the necessary representation of unaccompanied
minors enjoying temporary protection by legal guardianship,
or, where necessary, representation by an organisation which is
responsible for the care and well-being of minors, or by any
other appropriate representation.
2. During the period of temporary protection Member
States shall provide for unaccompanied minors to be placed:
(a) with adult relatives;
(b) with a foster-family;
(c) in reception centres with special provisions for minors, or
in other accommodation suitable for minors;
(d) with the person who looked after the child when fleeing.
The Member States shall take the necessary steps to enable the
placement. Agreement by the adult person or persons
concerned shall be established by the Member States. The views
of the child shall be taken into account in accordance with the
age and maturity of the child.
CHAPTER IV
Access to the asylum procedure in the context of temporary
protection
Article 17
1. Persons enjoying temporary protection must be able to
lodge an application for asylum at any time.
2. The examination of any asylum application not processed
before the end of the period of temporary protection shall be
completed after the end of that period.
Article 18
The criteria and mechanisms for deciding which Member State
is responsible for considering an asylum application shall
apply. In particular, the Member State responsible for examining
an asylum application submitted by a person enjoying
temporary protection pursuant to this Directive, shall be the
Member State which has accepted his transfer onto its territory.
Article 19
1. The Member States may provide that temporary protection
may not be enjoyed concurrently with the status of asylum
seeker while applications are under consideration.
2. Where, after an asylum application has been examined,
refugee status or, where applicable, other kind of protection is
not granted to a person eligible for or enjoying temporary
protection, the Member States shall, without prejudice to
Article 28, provide for that person to enjoy or to continue to
enjoy temporary protection for the remainder of the period of
protection.
CHAPTER V
Return and measures after temporary protection has
ended
Article 20
When the temporary protection ends, the general laws on
protection and on aliens in the Member States shall apply,
without prejudice to Articles 21, 22 and 23.
Article 21
1. The Member States shall take the measures necessary to
make possible the voluntary return of persons enjoying temporary
protection or whose temporary protection has ended. The
Member States shall ensure that the provisions governing
voluntary return of persons enjoying temporary protection
facilitate their return with respect for human dignity.
The Member State shall ensure that the decision of those
persons to return is taken in full knowledge of the facts. The
Member States may provide for exploratory visits.
2. For such time as the temporary protection has not ended,
the Member States shall, on the basis of the circumstances
prevailing in the country of origin, give favourable consideration
to requests for return to the host Member State from
persons who have enjoyed temporary protection and exercised
their right to a voluntary return.
EN Official Journal of the European Communities 7.8.2001L 212/18
3. At the end of the temporary protection, the Member
States may provide for the obligations laid down in CHAPTER
III to be extended individually to persons who have been
covered by temporary protection and are benefiting from a
voluntary return programme. The extension shall have effect
until the date of return.
Article 22
1. The Member States shall take the measures necessary to
ensure that the enforced return of persons whose temporary
protection has ended and who are not eligible for admission is
conducted with due respect for human dignity.
2. In cases of enforced return, Member States shall consider
any compelling humanitarian reasons which may make return
impossible or unreasonable in specific cases.
Article 23
1. The Member States shall take the necessary measures
concerning the conditions of residence of persons who have
enjoyed temporary protection and who cannot, in view of their
state of health, reasonably be expected to travel; where for
example they would suffer serious negative effects if their
treatment was interrupted. They shall not be expelled so long
as that situation continues.
2. The Member States may allow families whose children are
minors and attend school in a Member State to benefit from
residence conditions allowing the children concerned to
complete the current school period.
CHAPTER VI
Solidarity
Article 24
The measures provided for in this Directive shall benefit from
the European Refugee Fund set up by Decision 2000/596/EC,
under the terms laid down in that Decision.
Article 25
1. The Member States shall receive persons who are eligible
for temporary protection in a spirit of Community solidarity.
They shall indicate – in figures or in general terms – their
capacity to receive such persons. This information shall be set
out in the Council Decision referred to in Article 5. After that
Decision has been adopted, the Member States may indicate
additional reception capacity by notifying the Council and the
Commission. This information shall be passed on swiftly to
UNHCR.
2. The Member States concerned, acting in cooperation with
the competent international organisations, shall ensure that the
eligible persons defined in the Council Decision referred to in
Article 5, who have not yet arrived in the Community have
expressed their will to be received onto their territory.
3. When the number of those who are eligible for temporary
protection following a sudden and massive influx exceeds
the reception capacity referred to in paragraph 1, the Council
shall, as a matter of urgency, examine the situation and take
appropriate action, including recommending additional support
for Member States affected.
Article 26
1. For the duration of the temporary protection, the
Member States shall cooperate with each other with regard to
transferral of the residence of persons enjoying temporary
protection from one Member State to another, subject to the
consent of the persons concerned to such transferral.
2. A Member State shall communicate requests for transfers
to the other Member States and notify the Commission and
UNHCR. The Member States shall inform the requesting
Member State of their capacity for receiving transferees.
3. A Member State shall, at the request of another Member
State, provide information, as set out in Annex II, on a person
enjoying temporary protection which is needed to process a
matter under this Article.
4. Where a transfer is made from one Member State to
another, the residence permit in the Member State of departure
shall expire and the obligations towards the persons concerned
relating to temporary protection in the Member State of departure
shall come to an end. The new host Member State shall
grant temporary protection to the persons concerned.
5. The Member States shall use the model pass set out in
Annex I for transfers between Member States of persons
enjoying temporary protection.
CHAPTER VII
Administrative cooperation
Article 27
1. For the purposes of the administrative cooperation
required to implement temporary protection, the Member
States shall each appoint a national contact point, whose
address they shall communicate to each other and to the
Commission. The Member States shall, in liaison with the
Commission, take all the appropriate measures to establish
direct cooperation and an exchange of information between
the competent authorities.
2. The Member States shall, regularly and as quickly as
possible, communicate data concerning the number of persons
enjoying temporary protection and full information on the
national laws, regulations and administrative provisions
relating to the implementation of temporary protection.
EN Official Journal of the European Communities7.8.2001 L 212/19
CHAPTER VIII
Special provisions
Article 28
1. The Member States may exclude a person from temporary
protection if:
(a) there are serious reasons for considering that:
(i) he or she has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision
in respect of such crimes;
(ii) he or she has committed a serious non-political crime
outside the Member State of reception prior to his or
her admission to that Member State as a person
enjoying temporary protection. The severity of the
expected persecution is to be weighed against the
nature of the criminal offence of which the person
concerned is suspected. Particularly cruel actions, even
if committed with an allegedly political objective, may
be classified as serious non-political crimes. This
applies both to the participants in the crime and to its
instigators;
(iii) he or she has been guilty of acts contrary to the
purposes and principles of the United Nations;
(b) there are reasonable grounds for regarding him or her as a
danger to the security of the host Member State or, having
been convicted by a final judgment of a particularly serious
crime, he or she is a danger to the community of the host
Member State.
2. The grounds for exclusion referred to in paragraph 1
shall be based solely on the personal conduct of the person
concerned. Exclusion decisions or measures shall be based on
the principle of proportionality.
CHAPTER IX
Final provisions
Article 29
Persons who have been excluded from the benefit of temporary
protection or family reunification by a Member State shall be
entitled to mount a legal challenge in the Member State
concerned.
Article 30
The Member States shall lay down the rules on penalties applicable
to infringements of the national provisions adopted
pursuant to this Directive and shall take all measures necessary
to ensure that they are implemented. The penalties provided
for must be effective, proportionate and dissuasive.
Article 31
1. Not later than two years after the date specified in Article
32, the Commission shall report to the European Parliament
and the Council on the application of this Directive in the
Member States and shall propose any amendments that are
necessary. The Member States shall send the Commission all
the information that is appropriate for drawing up this report.
2. After presenting the report referred to at paragraph 1, the
Commission shall report to the European Parliament and the
Council on the application of this Directive in the Member
States at least every five years.
Article 32
1. The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with
this Directive by 31 December 2002 at the latest. They shall
forthwith inform the Commission thereof.
2. When the 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 a reference shall be laid down by the
Member States.
Article 33
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Communities.
Article 34
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Brussels, 20 July 2001.
For the Council
The President
J. VANDE LANOTTE
EN Official Journal of the European Communities7.8.2001 L 212/21
ANNEX I
EN Official Journal of the European Communities7.8.2001 L 212/23
ANNEX II
The information referred to in Articles 10, 15 and 26 of the Directive includes to the extent necessary one or more of the
following documents or data:
(a) personal data on the person concerned (name, nationality, date and place of birth, marital status, family relationship);
(b) identity documents and travel documents of the person concerned;
(c) documents concerning evidence of family ties (marriage certificate, birth certificate, certificate of adoption);
(d) other information essential to establish the person's identity or family relationship;
(e) residence permits, visas or residence permit refusal decisions issued to the person concerned by the Member State, and
documents forming the basis of decisions;
(f) residence permit and visa applications lodged by the person concerned and pending in the Member State, and the
stage reached in the processing of these.
The providing Member State shall notify any corrected information to the requesting Member State.
Volume I - 38
V. Irregular Migration, Detention and Return
A. Council Directive 2002/90/EC of 28 November 2002
defining the facilitation of unauthorised entry, transit and
residence
B. Council Directive 2001/40/EC of 28 May 2001 on the
mutual recognition of decisions on the expulsion of third
country nationals
C. Council Directive 2003/110/EC of 25 November 2003 on
assistance in cases of transit for the purposes of removal
by air
D. Directive 2008/115/EC of the European Parliament and of
the Council of 16 December 2008 on common standards
and procedures in Member States for returning illegally
staying third-country nationals
E. Council Directive 2004/81/EC of 29 April 2004 on the
residence permit issued to third-country nationals who are
victims of trafficking in human beings or who have been
the subject of an action to facilitate illegal immigration,
who cooperate with the competent authorities
F. Directive 2009/52/EC of the European Parliament and of
the Council of 18 June 2009 providing for minimum standards
on sanctions and measures against employers of illegally
staying third-country nationals
COUNCIL DIRECTIVE 2002/90/EC
of 28 November 2002
defining the facilitation of unauthorised entry, transit and residence
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
and in particular Article 61(a) and Article 63(3)(b) thereof,
Having regard to the initiative of the French Republic (1
),
Having regard to the opinion of the European Parliament (2
),
Whereas:
(1) One of the objectives of the European Union is the
gradual creation of an area of freedom, security and
justice, which means, inter alia, that illegal immigration
must be combated.
(2) Consequently, measures should be taken to combat the
aiding of illegal immigration both in connection with
unauthorised crossing of the border in the strict sense
and for the purpose of sustaining networks which
exploit human beings.
(3) To that end it is essential to approximate existing legal
provisions, in particular, on the one hand, the precise
definition of the infringement in question and the cases
of exemption, which is the subject of this Directive and,
on the other hand, minimum rules for penalties, liability
of legal persons and jurisdiction, which is the subject of
Council framework Decision 2002/946/JHA of 28
November 2002 on the strengthening of the penal
framework to prevent the facilitation of unauthorised
entry, transit and residence (3
).
(4) The purpose of this Directive is to provide a definition
of the facilitation of illegal immigration and consequently
to render more effective the implementation of
framework Decision 2002/946/JHA in order to prevent
that offence.
(5) This Directive supplements other instruments adopted in
order to combat illegal immigration, illegal employment,
trafficking in human beings and the sexual exploitation
of children.
(6) As regards Iceland and Norway, this Directive constitutes
a development of provisions 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 (4
),
which fall within the area referred to in Article 1(E) of
Council Decision 1999/437/EC of 17 May 1999 on
certain arrangements for the application of that Agreement
(5
).
(7) The United Kingdom and Ireland are taking part in the
adoption and application of this Directive in accordance
with the relevant provisions of the Treaties.
(8) 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 is not taking part in
the adoption of this Directive and is not bound by it or
subject to its application. Given that this Directive builds
upon the Schengen acquis under the provisions of Title
IV of Part Three of the Treaty establishing the European
Community, Denmark shall, in accordance with Article
5 of the said Protocol, decide within a period of six
months after the Council has adopted this Directive
whether it will implement it in its national law,
HAS ADOPTED THIS DIRECTIVE:
Article 1
General infringement
1. Each Member State shall adopt appropriate sanctions on:
(a) any person who intentionally assists a person who is not a
national of a Member State to enter, or transit across, the
territory of a Member State in breach of the laws of the
State concerned on the entry or transit of aliens;
(b) any person who, for financial gain, intentionally assists a
person who is not a national of a Member State to reside
within the territory of a Member State in breach of the laws
of the State concerned on the residence of aliens.
2. Any Member State may decide not to impose sanctions
with regard to the behaviour defined in paragraph 1(a) by
applying its national law and practice for cases where the aim
of the behaviour is to provide humanitarian assistance to the
person concerned.
Article 2
Instigation, participation and attempt
Each Member State shall take the measures necessary to ensure
that the sanctions referred to in Article 1 are also applicable to
any person who:
(a) is the instigator of,
(b) is an accomplice in, or
(c) attempts to commit
an infringement as referred to in Article 1(1)(a) or (b).
5.12.2002 L 328/17Official Journal of the European CommunitiesEN
(1
) OJ C 253, 4.9.2000, p. 1.
(2
) OJ C 276, 1.10.2001, p. 244.
(3
) See page 1 of this Official Journal.
(4
) OJ L 176, 10.7.1999, p. 36.
(5
) OJ L 176, 10.7.1999, p. 31.
Article 3
Sanctions
Each Member State shall take the measures necessary to ensure
that the infringements referred to in Articles 1 and 2 are
subject to effective, proportionate and dissuasive sanctions.
Article 4
Implementation
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 5 December 2004. 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 a reference shall be laid down by the
Member States.
2. Member States shall communicate to the Commission the
text of the main provisions of their national law which they
adopt in the field covered by this Directive, together with a
table showing how the provisions of this Directive correspond
to the national provisions adopted. The Commission shall
inform the other Member States thereof.
Article 5
Repeal
Article 27(1) of the 1990 Schengen Convention shall be
repealed as from 5 December 2004. Where a Member State
implements this Directive pursuant to Article 4(1) in advance
of that date, the said provision shall cease to apply to that
Member State from the date of implementation.
Article 6
Entry into force
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Communities.
Article 7
Addressees
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Brussels, 28 November 2002.
For the Council
The President
B. HAARDER
5.12.2002L 328/18 Official Journal of the European CommunitiesEN
EN Official Journal of the European Communities 2.6.2001L 149/34
COUNCIL DIRECTIVE 2001/40/EC
of 28 May 2001
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.
(1
) OJ C 243, 24.8.2000, p. 1.
(2
) Opinion delivered on 13 March 2001 (not yet published in the
Official Journal).
EN Official Journal of the European Communities2.6.2001 L 149/35
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 (1
).
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 appropriate 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 2 December
2002. These criteria and practical arrangements shall also apply
to the implementation of Article 24 of the Schengen Conven-
tion.
Article 8
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than 2 December 2002. 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.
(1) OJ L 281, 23.11.1995, p. 31.
EN Official Journal of the European Communities 2.6.2001L 149/36
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 Brussels, 28 May 2001.
For the Council
The President
T. BODSTRÖM
COUNCIL DIRECTIVE 2003/110/EC
of 25 November 2003
on assistance in cases of transit for the purposes of removal by air
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
and in particular Article 63(3)(b) thereof,
Having regard to the initiative of the Federal Republic of
Germany,
Having regard to the opinion of the European Parliament,
Whereas:
(1) Mutual assistance for the purposes of removal takes into
consideration the common objective of ending the illegal
residence of third-country nationals who are the subject
of removal orders. Rules binding on all the Member
States contribute furthermore to legal certainty and standardisation
of procedures.
(2) Removal by air is increasingly gaining in importance for
the purpose of terminating the residence of thirdcountry
nationals. Despite the efforts of the Member
States to give priority to using direct flights, it may be
necessary, from an economic viewpoint or insufficient
availability of direct flights, to use flight connections via
airports of transit of other Member States.
(3) The Council recommendation of 22 December 1995 on
concerted action and cooperation in carrying out
removal measures (1
) and the decision of the Executive
Committee of 21 April 1998 on cooperation between
the Contracting Parties in returning third-country
nationals by air, (SCH/Com-ex (98) 10) (2
) already
address the need for cooperation between Member States
in the field of removal by air of third-country nationals.
(4) The sovereignty of the Member States, particularly with
regard to the use of direct force against third-country
nationals resisting removal should remain unaffected.
(5) The Convention of 14 September 1963 on Offences and
Certain Other Acts committed on board Aircraft (Tokyo
Convention), particularly with regard to the on-board
powers of the pilot responsible and matters of liability
should remain unaffected.
(6) With regard to the briefing of airlines as to how to
conduct unescorted and escorted removals, reference is
made to Annex 9 to the Convention of the International
Civil Aviation Organisation (ICAO) of 7 December
1944.
(7) Member States are to implement this Directive with due
respect for human rights and fundamental freedoms, in
particular the Geneva Convention relating to the status
of refugees of 28 July 1951, as amended by the New
York Protocol of 31 January 1967 and the European
Convention for the Protection of Human Rights and
Fundamental Freedoms. In accordance with the applicable
international obligations, transit by air should be
neither requested nor granted if in the third country of
destination or of transit the third-country national faces
the threat of inhumane or humiliating treatment, torture
or the death penalty, or if his life or liberty would be at
risk by reason of his/her race, religion, nationality,
membership of a particular social group or political
conviction.
(8) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission (3
).
(9) 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 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, in accordance with Article 5 of the
abovementioned Protocol, Denmark is to decide within a
period of six months after the Council has adopted this
Directive, whether it will implement it in its national law
or not.
(10) As regards the Republic of Iceland and the Kingdom of
Norway, this Directive constitutes a development of the
provisions of the Schengen acquis within the meaning of
the Agreement concluded on 18 May 1999 by the
Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the
association of these two States with the implementation,
application and development of the Schengen acquis (4
),
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 (5
).
6.12.2003L 321/26 Official Journal of the European UnionEN
(1
) OJ C 5, 10.1.1996, p. 3.
(2
) OJ L 239, 22.9.2000, p. 193.
(3
) OJ L 184, 17.7.1999, p. 23.
(4
) OJ L 176, 10.7.1999, p. 36.
(5
) OJ L 176, 10.7.1999, p. 31.
(11) 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, these Member
States are not taking part in the adoption of this Directive
and therefore, subject to Article 4 of that Protocol,
are not bound by it or subject to its application.
(12) This Directive constitutes an act building on the
Schengen acquis or otherwise related to it within the
meaning of Article 3(1) of the 2003 Act of Accession,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The purpose of this Directive is to define measures on assistance
between the competent authorities at Member State
airports of transit with regard to unescorted and escorted
removals by air.
Article 2
For the purposes of this Directive:
(a) ‘third-country national’ means any person who is not a
national of a Member State of the European Union, the
Republic of Iceland or the Kingdom of Norway;
(b) ‘requesting Member State’ means the Member State which
enforces a removal order in respect of a third-country
national and requests transit via the airport of transit of
another Member State;
(c) ‘requested Member State’ or ‘transit Member State’ means
the Member State via whose airport of transit the transit is
to be effected;
(d) ‘escort’ means all persons from the requesting Member State
responsible for accompanying the third-country national,
including persons responsible for medical care and inter-
preters;
(e) ‘transit by air’ means the passage of the third-country
national and, if necessary, the escort through the area of
the airport of the requested Member State for the purposes
of removal by air.
Article 3
1. A Member State wishing to return a third-country
national by air shall examine whether it is possible to use a
direct flight to the country of destination.
2. If a Member State wishing to return a third-country
national cannot for reasonable practical circumstances use a
direct flight to the country of destination, it can request transit
by air via another Member State. An application for transit by
air shall in principle not be made if the removal measure
requires a change of airport on the territory of the requested
Member State.
3. Without prejudice to the obligations of Article 8, the
requested Member State may refuse transit by air if:
(a) the third-country national under national legislation in the
requested Member State is charged with criminal offences
or is wanted for the carrying out of a sentence;
(b) transit through other States or admission by the country of
destination is not feasible;
(c) the removal measure requires a change of airport on the
territory of the requested Member State;
(d) the requested assistance is impossible at a particular
moment for practical reasons, or
(e) the third-country national will be a threat to public policy,
public security, public health or to the international relations
of the requested Member State.
4. In the case of paragraph 3(d), the requested Member State
shall as quickly as possible inform the requesting Member State
of a date as close as possible to the originally requested date on
which transit by air may be assisted, in so far as the other
conditions are complied with.
5. Authorisations for transit by air which have already been
issued may be revoked by the requested Member State if
circumstances within the meaning of paragraph 3 subsequently
come to light, justifying a refusal of the transit.
6. The requested Member State shall inform the requesting
Member State forthwith of the refusal or revocation of a transit
by air authorisation under paragraph 3 or 5 or of any other
reason why the transit is not possible, and shall provide an
explanation of the reasons.
Article 4
1. The request for escorted or unescorted transit by air and
the associated assistance measures under Article 5(1) shall be
made in writing by the requesting Member State. It shall reach
the requested Member State as early as possible, and in any
case no later than two days before the transit. This time limit
may be waived in particularly urgent and duly justified cases.
2. The requested Member State shall inform the requesting
Member State forthwith of its decision within two days. This
time limit may be extended in duly justified cases by a
maximum of 48 hours. Transit by air shall not be started
without the approval of the requested Member State.
Where no reply is provided by the requested Member State
within the deadline referred to in the first subparagraph, the
transit operations may be started by means of a notification by
the requesting Member State.
Member States may provide on the basis of bilateral or multilateral
agreements or arrangements that the transit operations
may be started by means of a notification by the requesting
Member State.
Member States shall notify the Commission regarding the
agreements or arrangements referred to in the third subparagraph.
The Commission shall regularly report to the
Council on such agreements and arrangements.
6.12.2003 L 321/27Official Journal of the European UnionEN
3. For the purposes of dealing with the request under paragraph
1, the information on the form to be used for requesting
and authorising transit by air in accordance with the Annex
shall be forwarded to the requested Member State.
The measures necessary for the update and the adjustment of
the transit request as set out in the Annex as well as the
methods of its transmission shall be taken in accordance with
the procedure referred to in Article 9(2).
4. With respect to any request for transit, the requesting
Member State shall provide the requested Member State with
the details as provided for in the Annex.
5. The Member States shall each appoint a central authority
to which requests under paragraph 1 are to be sent.
The central authorities shall appoint contact points for all the
relevant airports of transit who can be contacted throughout
the transit operations.
Article 5
1. The requesting Member State shall take appropriate
arrangements to ensure that the transit operation takes place in
the shortest possible time.
The transit operation shall take place at a maximum within 24
hours.
2. The requested Member State, subject to mutual consultations
with the requesting Member State within available means
and in compliance with relevant international standards, shall
provide all the assistance measures necessary from landing and
the opening of the aircraft doors until it is ensured that the
third-country national has left. However, mutual consultations
are not required in the cases referred to in point (b).
This relates to the following assistance measures in particular:
(a) meeting the third-country national at the aircraft and
escorting him/her within the confines of the transit airport,
in particular to his/her connecting flight;
(b) providing emergency medical care to the third-country
national and, if necessary, his/her escort;
(c) providing sustenance for the third-country national and, if
necessary, his/her escort;
(d) receiving, keeping and forwarding travel documents, particularly
in the case of unescorted removals;
(e) in cases of unescorted transit, informing the requesting
Member State of the place and time of departure of the
third-country national from the territory of the Member
State concerned;
(f) informing the requesting Member State if any serious incidents
took place during the transit of the third-country
national.
3. The requested Member State may, in accordance with its
national law:
(a) place and accommodate the third-country nationals in a
secure facility;
(b) use legitimate means to prevent or end any attempt by the
third-country national to resist the transit.
4. Without prejudice to Article 6(1), in cases where the
completion of transit operations cannot be ensured, despite the
assistance provided for in accordance with paragraphs 1 and 2,
the requested Member State may, upon request by and in
consultation with the requesting Member State, take all the
necessary assistance measures to continue the transit operation.
In such cases, the time limit referred to in paragraph 1 may be
extended by a maximum of 48 hours.
5. The competent authorities of the requested Member State
with whom responsibility for the measure lies shall decide the
nature and extent of the assistance afforded under paragraphs
2, 3 and 4.
6. The costs of the services provided according to paragraph
2(b) and (c) shall be borne by the requesting Member State.
The remaining costs shall also be borne by the requesting
Member State to the extent that they are actual and quantifi-
able.
Member States shall provide appropriate information with
regard to the criteria of quantification of the costs referred to
in the second subparagraph.
Article 6
1. The requesting Member State shall undertake to readmit
the third-country national forthwith if:
(a) the transit by air authorisation was refused or revoked
under Article 3(3) or (5);
(b) the third-country national entered the requested Member
State without authorisation during the transit;
(c) removal of the third-country national to another transit
country or to the country of destination, or boarding of the
connecting flight, was unsuccessful; or
(d) transit by air is not possible for another reason.
2. The requested Member State shall assist with the readmission
of the third-country national to the requesting Member
State in the cases referred to in paragraph 1. The requesting
Member State shall bear the costs incurred in returning the
third-country national.
Article 7
1. When carrying out the transit operation, the powers of
the escorts shall be limited to self-defence. In addition, in the
absence of law-enforcement officers from the transit Member
State or for the purpose of supporting the law-enforcement
officers, the escorts may use reasonable and proportionate
action in response to an immediate and serious risk to prevent
the third-country national from escaping, causing injury to
himself/herself or to a third party, or damage to property.
Under all circumstances escorts must comply with the legislation
of the requested Member State.
6.12.2003L 321/28 Official Journal of the European UnionEN
2. Escorts shall not carry weapons during transit by air and
shall wear civilian clothes. They shall provide means of appropriate
identification, including the transit authorisation delivered
by the transit Member State, or where applicable, the notification
referred to in Article 4(2), at the request of the
requested Member State.
Article 8
This Directive shall be without prejudice to the obligations
arising from the Geneva Convention relating to the status of
refugees of 28 July 1951, as amended by the New York
Protocol of 31 January 1967, from international conventions
on human rights and fundamental freedoms and from international
conventions on the extradition of persons.
Article 9
1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply.
The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at one month.
3. The Committee shall adopt its Rules of Procedure.
Article 10
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 6 December 2005 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 national law which they adopt in
the field covered by this Directive.
Article 11
The Decision of the Executive Committee of 21 April 1998 on
cooperation between the Contracting Parties in returning
foreign nationals by air (SCH/Com-ex (98) 10) shall be
repealed.
Article 12
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.
Article 13
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Brussels, 25 November 2003.
For the Council
The President
G. TREMONTI
6.12.2003 L 321/29Official Journal of the European UnionEN
ANNEX
6.12.2003L 321/30 Official Journal of the European UnionEN
6.12.2003 L 321/31Official Journal of the European UnionEN
DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 16 December 2008
on common standards and procedures in Member States for returning illegally staying third-country
nationals
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 63(3)(b) thereof,
Having regard to the proposal from the Commission,
Acting in accordance with the procedure laid down in
Article 251 of the Treaty (1),
Whereas:
(1) The Tampere European Council of 15 and 16 October
1999 established a coherent approach in the field of
immigration and asylum, dealing together with the
creation of a common asylum system, a legal immigration
policy and the fight against illegal immigration.
(2) The Brussels European Council of 4 and 5 November
2004 called for the establishment of an effective
removal and repatriation policy, based on common
standards, for persons to be returned in a humane
manner and with full respect for their fundamental
rights and dignity.
(3) On 4 May 2005 the Committee of Ministers of the
Council of Europe adopted ‘Twenty guidelines on
forced return’.
(4) Clear, transparent and fair rules need to be fixed to
provide for an effective return policy as a necessary
element of a well managed migration policy.
(5) This Directive should establish a horizontal set of rules,
applicable to all third-country nationals who do not or
who no longer fulfil the conditions for entry, stay or
residence in a Member State.
(6) Member States should ensure that the ending of illegal
stay of third-country nationals is carried out through a
fair and transparent procedure. According to general
principles of EU law, decisions taken under this
Directive should be adopted on a case-by-case basis
and based on objective criteria, implying that consideration
should go beyond the mere fact of an illegal stay.
When using standard forms for decisions related to
return, namely return decisions and, if issued, entry-ban
decisions and decisions on removal, Member States
should respect that principle and fully comply with all
applicable provisions of this Directive.
(7) The need for Community and bilateral readmission
agreements with third countries to facilitate the return
process is underlined. International cooperation with
countries of origin at all stages of the return process is
a prerequisite to achieving sustainable return.
(8) It is recognised that it is legitimate for Member States to
return illegally staying third-country nationals, provided
that fair and efficient asylum systems are in place which
fully respect the principle of non-refoulement.
(9) In accordance with Council Directive 2005/85/EC of
1 December 2005 on minimum standards on procedures
in Member States for granting and withdrawing refugee
status (2), a third-country national who has applied for
asylum in a Member State should not be regarded as
staying illegally on the territory of that Member State
until a negative decision on the application, or a
decision ending his or her right of stay as asylum
seeker has entered into force.
(10) Where there are no reasons to believe that this would
undermine the purpose of a return procedure, voluntary
return should be preferred over forced return and a
period for voluntary departure should be granted. An
extension of the period for voluntary departure should
be provided for when considered necessary because of
the specific circumstances of an individual case. In
order to promote voluntary return, Member States
should provide for enhanced return assistance and counselling
and make best use of the relevant funding possibilities
offered under the European Return Fund.
(11) A common minimum set of legal safeguards on decisions
related to return should be established to guarantee
effective protection of the interests of the individuals
concerned. The necessary legal aid should be made
available to those who lack sufficient resources.
Member States should provide in their national legislation
for which cases legal aid is to be considered
necessary.
ENL 348/98 Official Journal of the European Union 24.12.2008
(1) Opinion of the European Parliament of 18 June 2008 (not yet
published in the Official Journal) and Council Decision of
9 December 2008. (2) OJ L 326, 13.12.2005, p. 13.
(12) The situation of third-country nationals who are staying
illegally but who cannot yet be removed should be
addressed. Their basic conditions of subsistence should
be defined according to national legislation. In order to
be able to demonstrate their specific situation in the
event of administrative controls or checks, such
persons should be provided with written confirmation
of their situation. Member States should enjoy wide
discretion concerning the form and format of the
written confirmation and should also be able to include
it in decisions related to return adopted under this
Directive.
(13) The use of coercive measures should be expressly subject
to the principles of proportionality and effectiveness with
regard to the means used and objectives pursued.
Minimum safeguards for the conduct of forced return
should be established, taking into account Council
Decision 2004/573/EC of 29 April 2004 on the organisation
of joint flights for removals from the territory of
two or more Member States, of third-country nationals
who are subjects of individual removal orders (1).
Member States should be able to rely on various possibilities
to monitor forced return.
(14) The effects of national return measures should be given a
European dimension by establishing an entry ban prohibiting
entry into and stay on the territory of all the
Member States. The length of the entry ban should be
determined with due regard to all relevant circumstances
of an individual case and should not normally exceed five
years. In this context, particular account should be taken
of the fact that the third-country national concerned has
already been the subject of more than one return
decision or removal order or has entered the territory
of a Member State during an entry ban.
(15) It should be for the Member States to decide whether or
not the review of decisions related to return implies the
power for the reviewing authority or body to substitute
its own decision related to the return for the earlier
decision.
(16) The use of detention for the purpose of removal should
be limited and subject to the principle of proportionality
with regard to the means used and objectives pursued.
Detention is justified only to prepare the return or carry
out the removal process and if the application of less
coercive measures would not be sufficient.
(17) Third-country nationals in detention should be treated in
a humane and dignified manner with respect for their
fundamental rights and in compliance with international
and national law. Without prejudice to the initial apprehension
by law-enforcement authorities, regulated by
national legislation, detention should, as a rule, take
place in specialised detention facilities.
(18) Member States should have rapid access to information
on entry bans issued by other Member States. This information
sharing should take place in accordance with
Regulation (EC) No 1987/2006 of the European
Parliament and of the Council of 20 December 2006
on the establishment, operation and use of the second
generation Schengen Information System (SIS II) (2).
(19) Cooperation between the institutions involved at all
levels in the return process and the exchange and
promotion of best practices should accompany the implementation
of this Directive and provide European
added value.
(20) Since the objective of this Directive, namely to establish
common rules concerning return, removal, use of
coercive measures, detention and entry bans, cannot be
sufficiently achieved by the Member States and can
therefore, by reason of its scale and effects, 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 Directive does not go beyond
what is necessary to achieve that objective.
(21) Member States should implement this Directive without
discrimination on the basis of sex, race, colour, ethnic or
social origin, genetic features, language, religion or belief,
political or any other opinions, membership of a national
minority, property, birth, disability, age or sexual orien­
tation.
(22) In line with the 1989 United Nations Convention on the
Rights of the Child, the ‘best interests of the child’ should
be a primary consideration of Member States when implementing
this Directive. In line with the European
Convention for the Protection of Human Rights and
Fundamental Freedoms, respect for family life should
be a primary consideration of Member States when implementing
this Directive.
(23) Application of this Directive is without prejudice to the
obligations resulting from the Geneva Convention
relating to the Status of Refugees of 28 July 1951, as
amended by the New York Protocol of 31 January 1967.
(24) This Directive respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
EN24.12.2008 Official Journal of the European Union L 348/99
(1) OJ L 261, 6.8.2004, p. 28. (2) OJ L 381, 28.12.2006, p. 4.
(25) 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 Directive and is not bound by it
or subject to its application. Given that this Directive
builds — to the extent that it applies to third-country
nationals who do not fulfil or who no longer fulfil the
conditions of entry in accordance with the Schengen
Borders Code (1) — upon the Schengen acquis under
the provisions of Title IV of Part Three of the Treaty
establishing the European Community, Denmark shall,
in accordance with Article 5 of the said Protocol,
decide, within a period of six months after the
adoption of this Directive, whether it will implement it
in its national law.
(26) To the extent that it applies to third-country nationals
who do not fulfil or who no longer fulfil the conditions
of entry in accordance with the Schengen Borders Code,
this Directive constitutes a development of provisions of
the Schengen acquis in which the United Kingdom does
not take part, in accordance with Council Decision
2000/365/EC of 29 May 2000 concerning the request
of the United Kingdom of Great Britain and Northern
Ireland to take part in some of the provisions of the
Schengen acquis (2); moreover, in accordance with
Articles 1 and 2 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, and without prejudice to
Article 4 of the said Protocol, the United Kingdom is
not taking part in the adoption of this Directive and is
therefore not bound by it in its entirety or subject to its
application.
(27) To the extent that it applies to third-country nationals
who do not fulfil or who no longer fulfil the conditions
of entry in accordance with the Schengen Borders Code,
this Directive constitutes a development of provisions of
the Schengen acquis in which Ireland does not take part,
in accordance with Council Decision 2002/192/EC of
28 February 2002 concerning Ireland’s request to take
part in some of the provisions of the Schengen acquis (3);
moreover, in accordance with Articles 1 and 2 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, and
without prejudice to Article 4 of the said Protocol,
Ireland is not taking part in the adoption of this
Directive and is therefore not bound by it in its
entirety or subject to its application.
(28) As regards Iceland and Norway, this Directive constitutes
— to the extent that it applies to third-country nationals
who do not fulfil or who no longer fulfil the conditions
of entry in accordance with the Schengen Borders Code
— a development of provisions 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,
which fall within the area referred to in Article 1,
point C, of Council Decision 1999/437/EC (4) on
certain arrangements for the application of that
Agreement.
(29) As regards Switzerland, this Directive constitutes — to
the extent that it applies to third-country nationals who
do not fulfil or who no longer fulfil the conditions of
entry in accordance with the Schengen Borders Code —
a development of provisions of the Schengen acquis
within the meaning of the Agreement between the
European Union, the European Community and the
Swiss Confederation on the Swiss Confederation’s association
with the implementation, application and development
of the Schengen acquis, which fall within the
area referred to in Article 1, point C, of Decision
1999/437/EC read in conjunction with Article 3 of
Council Decision 2008/146/EC (5) on the conclusion,
on behalf of the European Community, of that
Agreement.
(30) As regards Liechtenstein, this Directive constitutes — to
the extent that it applies to third-country nationals who
do not fulfil or who no longer fulfil the conditions of
entry in accordance with the Schengen Borders Code —
a development of provisions of the Schengen acquis
within the meaning of the Protocol between the
European Union, the European Community, the Swiss
Confederation and the Principality of Liechtenstein on
the accession of the Principality of Liechtenstein to the
Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss
Confederation’s association with the implementation,
application and development of the Schengen acquis,
which fall within the area referred to in Article 1,
point C, of Decision 1999/437/EC read in conjunction
with Article 3 of Council Decision 2008/261/EC (6) on
the signature, on behalf of the European Community,
and on the provisional application of, certain provisions
of that Protocol,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
This Directive sets out common standards and procedures to be
applied in Member States for returning illegally staying thirdcountry
nationals, in accordance with fundamental rights as
general principles of Community law as well as international
law, including refugee protection and human rights obligations.
ENL 348/100 Official Journal of the European Union 24.12.2008
(1) Regulation (EC) No 562/2006 of the European Parliament and of
the Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders
(Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1).
(2) OJ L 131, 1.6.2000, p. 43.
(3) OJ L 64, 7.3.2002, p. 20.
(4) OJ L 176, 10.7.1999, p. 31.
(5) OJ L 53, 27.2.2008, p. 1.
(6) OJ L 83, 26.3.2008, p. 3.
Article 2
Scope
1. This Directive applies to third-country nationals staying
illegally on the territory of a Member State.
2. Member States may decide not to apply this Directive to
third-country nationals who:
(a) are subject to a refusal of entry in accordance with
Article 13 of the Schengen Borders Code, or who are apprehended
or intercepted by the competent authorities in
connection with the irregular crossing by land, sea or air
of the external border of a Member State and who have not
subsequently obtained an authorisation or a right to stay in
that Member State;
(b) are subject to return as a criminal law sanction or as a
consequence of a criminal law sanction, according to
national law, or who are the subject of extradition
procedures.
3. This Directive shall not apply to persons enjoying the
Community right of free movement as defined in Article 2(5)
of the Schengen Borders Code.
Article 3
Definitions
For the purpose of this Directive the following definitions shall
apply:
1. ‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1)
of the Treaty and who is not a person enjoying the
Community right of free movement, as defined in
Article 2(5) of the Schengen Borders Code;
2. ‘illegal stay’ means the presence on the territory of a Member
State, of a third-country national who does not fulfil, or no
longer fulfils the conditions of entry as set out in Article 5 of
the Schengen Borders Code or other conditions for entry,
stay or residence in that Member State;
3. ‘return’ means the process of a third-country national going
back — whether in voluntary compliance with an obligation
to return, or enforced — to:
— his or her country of origin, or
— a country of transit in accordance with Community or
bilateral readmission agreements or other arrangements,
or
— another third country, to which the third-country
national concerned voluntarily decides to return and in
which he or she will be accepted;
4. ‘return decision’ means an administrative or judicial decision
or act, stating or declaring the stay of a third-country
national to be illegal and imposing or stating an obligation
to return;
5. ‘removal’ means the enforcement of the obligation to return,
namely the physical transportation out of the Member State;
6. ‘entry ban’ means an administrative or judicial decision or
act prohibiting entry into and stay on the territory of the
Member States for a specified period, accompanying a return
decision;
7. ‘risk of absconding’ means the existence of reasons in an
individual case which are based on objective criteria
defined by law to believe that a third-country national
who is the subject of return procedures may abscond;
8. ‘voluntary departure’ means compliance with the obligation
to return within the time-limit fixed for that purpose in the
return decision;
9. ‘vulnerable persons’ means minors, unaccompanied minors,
disabled people, elderly people, pregnant women, single
parents with minor children and persons who have been
subjected to torture, rape or other serious forms of psychological,
physical or sexual violence.
Article 4
More favourable provisions
1. This Directive shall be without prejudice to more
favourable provisions of:
(a) bilateral or multilateral agreements between the Community
or the Community and its Member States and one or more
third countries;
(b) bilateral or multilateral agreements between one or more
Member States and one or more third countries.
2. This Directive shall be without prejudice to any provision
which may be more favourable for the third-country national,
laid down in the Community acquis relating to immigration and
asylum.
3. This Directive shall be without prejudice to the right of
the Member States to adopt or maintain provisions that are
more favourable to persons to whom it applies provided that
such provisions are compatible with this Directive.
EN24.12.2008 Official Journal of the European Union L 348/101
4. With regard to third-country nationals excluded from the
scope of this Directive in accordance with Article 2(2)(a),
Member States shall:
(a) ensure that their treatment and level of protection are no
less favourable than as set out in Article 8(4) and (5)
(limitations on use of coercive measures), Article 9(2)(a)
(postponement of removal), Article 14(1) (b) and (d)
(emergency health care and taking into account needs of
vulnerable persons), and Articles 16 and 17 (detention
conditions) and
(b) respect the principle of non-refoulement.
Article 5
Non-refoulement, best interests of the child, family life and
state of health
When implementing this Directive, Member States shall take
due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.
CHAPTER II
TERMINATION OF ILLEGAL STAY
Article 6
Return decision
1. Member States shall issue a return decision to any thirdcountry
national staying illegally on their territory, without
prejudice to the exceptions referred to in paragraphs 2 to 5.
2. Third-country nationals staying illegally on the territory of
a Member State and holding a valid residence permit or other
authorisation offering a right to stay issued by another Member
State shall be required to go to the territory of that other
Member State immediately. In the event of non-compliance
by the third-country national concerned with this requirement,
or where the third-country national’s immediate departure is
required for reasons of public policy or national security,
paragraph 1 shall apply.
3. Member States may refrain from issuing a return decision
to a third-country national staying illegally on their territory if
the third-country national concerned is taken back by another
Member State under bilateral agreements or arrangements
existing on the date of entry into force of this Directive. In
such a case the Member State which has taken back the
third-country national concerned shall apply paragraph 1.
4. Member States may at any moment decide to grant an
autonomous residence permit or other authorisation offering a
right to stay for compassionate, humanitarian or other reasons
to a third-country national staying illegally on their territory. In
that event no return decision shall be issued. Where a return
decision has already been issued, it shall be withdrawn or
suspended for the duration of validity of the residence permit
or other authorisation offering a right to stay.
5. If a third-country national staying illegally on the territory
of a Member State is the subject of a pending procedure for
renewing his or her residence permit or other authorisation
offering a right to stay, that Member State shall consider
refraining from issuing a return decision, until the pending
procedure is finished, without prejudice to paragraph 6.
6. This Directive shall not prevent Member States from
adopting a decision on the ending of a legal stay together
with a return decision and/or a decision on a removal and/or
entry ban in a single administrative or judicial decision or act as
provided for in their national legislation, without prejudice to
the procedural safeguards available under Chapter III and under
other relevant provisions of Community and national law.
Article 7
Voluntary departure
1. A return decision shall provide for an appropriate period
for voluntary departure of between seven and thirty days,
without prejudice to the exceptions referred to in paragraphs
2 and 4. Member States may provide in their national legislation
that such a period shall be granted only following an
application by the third-country national concerned. In such a
case, Member States shall inform the third-country nationals
concerned of the possibility of submitting such an application.
The time period provided for in the first subparagraph shall not
exclude the possibility for the third-country nationals concerned
to leave earlier.
2. Member States shall, where necessary, extend the period
for voluntary departure by an appropriate period, taking into
account the specific circumstances of the individual case, such
as the length of stay, the existence of children attending school
and the existence of other family and social links.
3. Certain obligations aimed at avoiding the risk of
absconding, such as regular reporting to the authorities,
deposit of an adequate financial guarantee, submission of
documents or the obligation to stay at a certain place may be
imposed for the duration of the period for voluntary departure.
ENL 348/102 Official Journal of the European Union 24.12.2008
4. If there is a risk of absconding, or if an application for a
legal stay has been dismissed as manifestly unfounded or fraudulent,
or if the person concerned poses a risk to public policy,
public security or national security, Member States may refrain
from granting a period for voluntary departure, or may grant a
period shorter than seven days.
Article 8
Removal
1. Member States shall take all necessary measures to enforce
the return decision if no period for voluntary departure has
been granted in accordance with Article 7(4) or if the obligation
to return has not been complied with within the period for
voluntary departure granted in accordance with Article 7.
2. If a Member State has granted a period for voluntary
departure in accordance with Article 7, the return decision
may be enforced only after the period has expired, unless a
risk as referred to in Article 7(4) arises during that period.
3. Member States may adopt a separate administrative or
judicial decision or act ordering the removal.
4. Where Member States use — as a last resort — coercive
measures to carry out the removal of a third-country national
who resists removal, such measures shall be proportionate and
shall not exceed reasonable force. They shall be implemented as
provided for in national legislation in accordance with fundamental
rights and with due respect for the dignity and physical
integrity of the third-country national concerned.
5. In carrying out removals by air, Member States shall take
into account the Common Guidelines on security provisions for
joint removals by air annexed to Decision 2004/573/EC.
6. Member States shall provide for an effective forced-return
monitoring system.
Article 9
Postponement of removal
1. Member States shall postpone removal:
(a) when it would violate the principle of non-refoulement, or
(b) for as long as a suspensory effect is granted in accordance
with Article 13(2).
2. Member States may postpone removal for an appropriate
period taking into account the specific circumstances of the
individual case. Member States shall in particular take into
account:
(a) the third-country national’s physical state or mental
capacity;
(b) technical reasons, such as lack of transport capacity, or
failure of the removal due to lack of identification.
3. If a removal is postponed as provided for in paragraphs 1
and 2, the obligations set out in Article 7(3) may be imposed
on the third-country national concerned.
Article 10
Return and removal of unaccompanied minors
1. Before deciding to issue a return decision in respect of an
unaccompanied minor, assistance by appropriate bodies other
than the authorities enforcing return shall be granted with due
consideration being given to the best interests of the child.
2. Before removing an unaccompanied minor from the
territory of a Member State, the authorities of that Member
State shall be satisfied that he or she will be returned to a
member of his or her family, a nominated guardian or
adequate reception facilities in the State of return.
Article 11
Entry ban
1. Return decisions shall be accompanied by an entry ban:
(a) if no period for voluntary departure has been granted, or
(b) if the obligation to return has not been complied with.
In other cases return decisions may be accompanied by an entry
ban.
2. The length of the entry ban shall be determined with due
regard to all relevant circumstances of the individual case and
shall not in principle exceed five years. It may however exceed
five years if the third-country national represents a serious
threat to public policy, public security or national security.
3. Member States shall consider withdrawing or suspending
an entry ban where a third-country national who is the subject
of an entry ban issued in accordance with paragraph 1, second
subparagraph, can demonstrate that he or she has left the
territory of a Member State in full compliance with a return
decision.
EN24.12.2008 Official Journal of the European Union L 348/103
Victims of trafficking in human beings who have been granted a
residence permit pursuant to Council Directive 2004/81/EC of
29 April 2004 on the residence permit issued to third-country
nationals who are victims of trafficking in human beings or
who have been the subject of an action to facilitate illegal
immigration, who cooperate with the competent authorities (1)
shall not be subject of an entry ban without prejudice to
paragraph 1, first subparagraph, point (b), and provided that
the third-country national concerned does not represent a
threat to public policy, public security or national security.
Member States may refrain from issuing, withdraw or suspend
an entry ban in individual cases for humanitarian reasons.
Member States may withdraw or suspend an entry ban in individual
cases or certain categories of cases for other reasons.
4. Where a Member State is considering issuing a residence
permit or other authorisation offering a right to stay to a thirdcountry
national who is the subject of an entry ban issued by
another Member State, it shall first consult the Member State
having issued the entry ban and shall take account of its
interests in accordance with Article 25 of the Convention implementing
the Schengen Agreement (2).
5. Paragraphs 1 to 4 shall apply without prejudice to the
right to international protection, as defined in Article 2(a) of
Council Directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the
protection granted (3), in the Member States.
CHAPTER III
PROCEDURAL SAFEGUARDS
Article 12
Form
1. Return decisions and, if issued, entry-ban decisions and
decisions on removal shall be issued in writing and give
reasons in fact and in law as well as information about
available legal remedies.
The information on reasons in fact may be limited where
national law allows for the right to information to be restricted,
in particular in order to safeguard national security, defence,
public security and for the prevention, investigation, detection
and prosecution of criminal offences.
2. Member States shall provide, upon request, a written or
oral translation of the main elements of decisions related to
return, as referred to in paragraph 1, including information
on the available legal remedies in a language the third-country
national understands or may reasonably be presumed to
understand.
3. Member States may decide not to apply paragraph 2 to
third country nationals who have illegally entered the territory
of a Member State and who have not subsequently obtained an
authorisation or a right to stay in that Member State.
In such cases decisions related to return, as referred to in
paragraph 1, shall be given by means of a standard form as
set out under national legislation.
Member States shall make available generalised information
sheets explaining the main elements of the standard form in
at least five of those languages which are most frequently used
or understood by illegal migrants entering the Member State
concerned.
Article 13
Remedies
1. The third-country national concerned shall be afforded an
effective remedy to appeal against or seek review of decisions
related to return, as referred to in Article 12(1), before a
competent judicial or administrative authority or a competent
body composed of members who are impartial and who enjoy
safeguards of independence.
2. The authority or body mentioned in paragraph 1 shall
have the power to review decisions related to return, as
referred to in Article 12(1), including the possibility of
temporarily suspending their enforcement, unless a temporary
suspension is already applicable under national legislation.
3. The third-country national concerned shall have the possibility
to obtain legal advice, representation and, where
necessary, linguistic assistance.
4. Member States shall ensure that the necessary legal
assistance and/or representation is granted on request free of
charge in accordance with relevant national legislation or rules
regarding legal aid, and may provide that such free legal
assistance and/or representation is subject to conditions as set
out in Article 15(3) to (6) of Directive 2005/85/EC.
Article 14
Safeguards pending return
1. Member States shall, with the exception of the situation
covered in Articles 16 and 17, ensure that the following principles
are taken into account as far as possible in relation to
third-country nationals during the period for voluntary
departure granted in accordance with Article 7 and during
periods for which removal has been postponed in accordance
with Article 9:
ENL 348/104 Official Journal of the European Union 24.12.2008
(1) OJ L 261, 6.8.2004, p. 19.
(2) OJ L 239, 22.9.2000, p. 19.
(3) OJ L 304, 30.9.2004, p. 12.
(a) family unity with family members present in their territory
is maintained;
(b) emergency health care and essential treatment of illness are
provided;
(c) minors are granted access to the basic education system
subject to the length of their stay;
(d) special needs of vulnerable persons are taken into account.
2. Member States shall provide the persons referred to in
paragraph 1 with a written confirmation in accordance with
national legislation that the period for voluntary departure has
been extended in accordance with Article 7(2) or that the return
decision will temporarily not be enforced.
CHAPTER IV
DETENTION FOR THE PURPOSE OF REMOVAL
Article 15
Detention
1. Unless other sufficient but less coercive measures can be
applied effectively in a specific case, Member States may only
keep in detention a third-country national who is the subject of
return procedures in order to prepare the return and/or carry
out the removal process, in particular when:
(a) there is a risk of absconding or
(b) the third-country national concerned avoids or hampers the
preparation of return or the removal process.
Any detention shall be for as short a period as possible and
only maintained as long as removal arrangements are in
progress and executed with due diligence.
2. Detention shall be ordered by administrative or judicial
authorities.
Detention shall be ordered in writing with reasons being given
in fact and in law.
When detention has been ordered by administrative authorities,
Member States shall:
(a) either provide for a speedy judicial review of the lawfulness
of detention to be decided on as speedily as possible from
the beginning of detention;
(b) or grant the third-country national concerned the right to
take proceedings by means of which the lawfulness of
detention shall be subject to a speedy judicial review to
be decided on as speedily as possible after the launch of
the relevant proceedings. In such a case Member States shall
immediately inform the third-country national concerned
about the possibility of taking such proceedings.
The third-country national concerned shall be released immediately
if the detention is not lawful.
3. In every case, detention shall be reviewed at reasonable
intervals of time either on application by the third-country
national concerned or ex officio. In the case of prolonged
detention periods, reviews shall be subject to the supervision
of a judicial authority.
4. When it appears that a reasonable prospect of removal no
longer exists for legal or other considerations or the conditions
laid down in paragraph 1 no longer exist, detention ceases to be
justified and the person concerned shall be released immedi­
ately.
5. Detention shall be maintained for as long a period as the
conditions laid down in paragraph 1 are fulfilled and it is
necessary to ensure successful removal. Each Member State
shall set a limited period of detention, which may not exceed
six months.
6. Member States may not extend the period referred to in
paragraph 5 except for a limited period not exceeding a further
twelve months in accordance with national law in cases where
regardless of all their reasonable efforts the removal operation is
likely to last longer owing to:
(a) a lack of cooperation by the third-country national
concerned, or
(b) delays in obtaining the necessary documentation from third
countries.
Article 16
Conditions of detention
1. Detention shall take place as a rule in specialised detention
facilities. Where a Member State cannot provide accommodation
in a specialised detention facility and is obliged to
resort to prison accommodation, the third-country nationals
in detention shall be kept separated from ordinary prisoners.
2. Third-country nationals in detention shall be allowed —
on request — to establish in due time contact with legal representatives,
family members and competent consular authorities.
3. Particular attention shall be paid to the situation of
vulnerable persons. Emergency health care and essential
treatment of illness shall be provided.
EN24.12.2008 Official Journal of the European Union L 348/105
4. Relevant and competent national, international and nongovernmental
organisations and bodies shall have the possibility
to visit detention facilities, as referred to in paragraph 1, to the
extent that they are being used for detaining third-country
nationals in accordance with this Chapter. Such visits may be
subject to authorisation.
5. Third-country nationals kept in detention shall be systematically
provided with information which explains the rules
applied in the facility and sets out their rights and obligations.
Such information shall include information on their entitlement
under national law to contact the organisations and bodies
referred to in paragraph 4.
Article 17
Detention of minors and families
1. Unaccompanied minors and families with minors shall
only be detained as a measure of last resort and for the
shortest appropriate period of time.
2. Families detained pending removal shall be provided with
separate accommodation guaranteeing adequate privacy.
3. Minors in detention shall have the possibility to engage in
leisure activities, including play and recreational activities appropriate
to their age, and shall have, depending on the length of
their stay, access to education.
4. Unaccompanied minors shall as far as possible be
provided with accommodation in institutions provided with
personnel and facilities which take into account the needs of
persons of their age.
5. The best interests of the child shall be a primary consideration
in the context of the detention of minors pending
removal.
Article 18
Emergency situations
1. In situations where an exceptionally large number of
third-country nationals to be returned places an unforeseen
heavy burden on the capacity of the detention facilities of a
Member State or on its administrative or judicial staff, such a
Member State may, as long as the exceptional situation persists,
decide to allow for periods for judicial review longer than those
provided for under the third subparagraph of Article 15(2) and
to take urgent measures in respect of the conditions of
detention derogating from those set out in Articles 16(1) and
17(2).
2. When resorting to such exceptional measures, the Member
State concerned shall inform the Commission. It shall also
inform the Commission as soon as the reasons for applying
these exceptional measures have ceased to exist.
3. Nothing in this Article shall be interpreted as allowing
Member States to derogate from their general obligation to
take all appropriate measures, whether general or particular,
to ensure fulfilment of their obligations under this Directive.
CHAPTER V
FINAL PROVISIONS
Article 19
Reporting
The Commission shall report every three years to the European
Parliament and the Council on the application of this Directive
in the Member States and, if appropriate, propose amendments.
The Commission shall report for the first time by 24 December
2013 and focus on that occasion in particular on the application
of Article 11, Article 13(4) and Article 15 in Member
States. In relation to Article 13(4) the Commission shall assess
in particular the additional financial and administrative impact
in Member States.
Article 20
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 24 December 2010. In relation to Article 13(4),
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 24 December 2011. They shall forthwith communicate
to the Commission the text of those measures.
When Member States adopt those measures, they shall contain a
reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member
States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.
Article 21
Relationship with the Schengen Convention
This Directive replaces the provisions of Articles 23 and 24 of
the Convention implementing the Schengen Agreement.
Article 22
Entry into force
This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union.
ENL 348/106 Official Journal of the European Union 24.12.2008
Article 23
Addressees
This Directive is addressed to the Member States in accordance with the Treaty establishing the European
Community.
Done at Strasbourg, 16 December 2008.
For the European Parliament
The President
H.-G. PÖTTERING
For the Council
The President
B. LE MAIRE
EN24.12.2008 Official Journal of the European Union L 348/107
COUNCIL DIRECTIVE 2004/81/EC
of 29 April 2004
on the residence permit issued to third-country nationals who are victims of trafficking in human
beings or who have been the subject of an action to facilitate illegal immigration, who cooperate
with the competent authorities
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
and in particular point 3 of Article 63 thereof,
Having regard to the proposal from the Commission, (1
)
Having regard to the opinion of the European Parliament, (2
)
Having regard to the opinion of the European Economic and
Social Committee, (3
)
Having consulted the Committee of the Regions,
Whereas:
(1) The framing of a common immigration policy, including
the definition of the conditions of entry and residence
for foreigners and measures to combat illegal immigration,
is a constituent element of the European Union's
objective of creating an area of freedom, security and
justice.
(2) At its special meeting in Tampere on 15 and 16
October 1999, the European Council expressed its
determination to tackle illegal immigration at source, for
example by targeting those who engage in trafficking of
human beings and the economic exploitation of
migrants. It called on the Member States to concentrate
their efforts on detecting and dismantling criminal
networks while protecting the rights of victims.
(3) An indication of the growing concern about this
phenomenon at international level was the adoption by
the United Nations General Assembly of a Convention
against Transnational Organised Crime, supplemented
by a Protocol to Prevent, Suppress and Punish Trafficking
in Persons, especially Women and Children, and
a Protocol Against the Smuggling of Migrants by Land,
Sea and Air. These were signed by the Community and
the 15 Member States in December 2000.
(4) This Directive is without prejudice to the protection
granted to refugees, to beneficiaries of subsidiary protection
and persons seeking international protection under
international refugee law and without prejudice to other
human rights instruments.
(5) This Directive is without prejudice to other provisions
on the protection of victims, witnesses or persons who
are particularly vulnerable. Nor does it detract from the
prerogatives of the Member States as regards the right of
residence granted on humanitarian or other grounds.
(6) This Directive respects fundamental rights and complies
with the principles recognised for example by the
Charter of Fundamental Rights of the European Union.
(7) Member States should give effect to the provision of this
Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic characteristics,
language, religion or belief, political or other
opinions, membership of a national minority, fortune,
birth, disabilities, age or sexual orientation.
(8) At European level, Council Directive 2002/90/EC of 28
November 2002 defining the facilitation of unauthorised
entry, transit and residence (4
) and Council Framework
Decision 2002/629/JHA of 19 July 2002 on combating
trafficking in human beings (5
) were adopted to
strengthen the prevention and the fight against the
above offences.
(9) This Directive introduces a residence permit intended for
victims of trafficking in human beings or, if a Member
State decides to extend the scope of this Directive, to
third-country nationals who have been the subject of an
action to facilitate illegal immigration to whom the residence
permit offers a sufficient incentive to cooperate
with the competent authorities while including certain
conditions to safeguard against abuse.
(10) To this end, it is necessary to lay down the criteria for
issuing a residence permit, the conditions of stay and the
grounds for non-renewal and withdrawal. The right to
stay under this Directive is subject to conditions and is
of provisional nature.
(11) The third country nationals concerned should be
informed of the possibility of obtaining this residence
permit and be given a period in which to reflect on their
position. This should help put them in a position to
reach a well-informed decision as to whether or not to
cooperate with the competent authorities, which may be
the police, prosecution and judicial authorities (in view
of the risks this may entail), so that they cooperate freely
and hence more effectively.
6.8.2004 L 261/19Official Journal of the European UnionEN
(1
) OJ C 126 E, 28.5.2002, p. 393.
(2
) Opinion delivered on 5 December 2002 (not yet published in the
Official Journal).
(3
) OJ C 221, 17.9.2002, p. 80.
(4
) OJ L 328, 5.12.2002, p. 17.
(5
) OJ L 203, 1.8.2002, p. 1.
(12) Given their vulnerability, the third-country nationals
concerned should be granted the assistance provided by
this Directive. This assistance should allow them to
recover and escape the influence of the perpetrators of
the offences. The medical treatment to be provided to
the third-country nationals covered by this Directive also
includes, where appropriate, psychotherapeutical care.
(13) A decision on the issue of a residence permit for at least
six months or its renewal has to be taken by the competent
authorities, who should consider if the relevant
conditions are fulfilled.
(14) This Directive should apply without prejudice to the
activities carried out by the competent authorities in all
phases of the relevant national proceedings, and in particular
when investigating the offences concerned.
(15) Member States should consider authorising the stay on
other grounds, according to their national legislation, for
third-country nationals who may fall within the scope of
this Directive, but who do not, or no longer, fulfil the
conditions set by it, for the members of his/her family
or for persons treated as members of his/her family.
(16) To enable the third-country nationals concerned to gain
their independence and not return to the criminal
network, the holders of the residence permit should be
authorised, under the conditions set by this Directive, to
have access to the labour market and pursue vocational
training and education. In authorising access of the
holders of the residence permit to vocational training
and education, Member States should consider in particular
the likely duration of stay.
(17) The participation of the third-country nationals
concerned to programmes and schemes, already existing
or to be introduced, should contribute to their recovery
of a normal social life.
(18) If the third-country nationals concerned submit an application
for another kind of residence permit, Member
States take a decision on the basis of ordinary national
aliens' law. When examining such an application,
Member States should consider the fact that the thirdcountry
nationals concerned have been granted the residence
permit issued under this Directive.
(19) Member States should provide the Commission, with
respect to the implementation of this Directive, with the
information which has been identified in the framework
of the activities developed with regard to the collection
and treatment of statistical data concerning matters
falling within the area of Justice and Home Affairs.
(20) Since the objective of introducing a residence permit for
the third-country nationals concerned who cooperate in
the fight against trafficking in human beings cannot be
sufficiently achieved by the Member States and can
therefore, by reason of the scale of the action, be better
achieved at the 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 Directive does not go beyond
what is necessary in order to achieve that objective.
(21) 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, these
Member States are not taking part in the adoption of
this Directive and are not bound by it or subject to its
application.
(22) In accordance with Article 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on the
European Union and the Treaty establishing the European
Community, Denmark does not take part in the
adoption of this Directive and is not bound by it or
subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Purpose
The purpose of this Directive is to define the conditions for
granting residence permits of limited duration, linked to the
length of the relevant national proceedings, to third-country
nationals who cooperate in the fight against trafficking in
human beings or against action to facilitate illegal immigration.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1) of
the Treaty;
(b) ‘action to facilitate illegal immigration’ covers cases such as
those referred to in Articles 1 and 2 of Directive
2002/90/EC;
(c) ‘trafficking in human beings’ covers cases such as those
referred to in Articles 1, 2 and 3 of Framework Decision
2002/629/JHA;
(d) ‘measure to enforce an expulsion order’ means any measure
taken by a Member State to enforce the decision of the
competent authorities ordering the expulsion of a thirdcountry
national;
6.8.2004L 261/20 Official Journal of the European UnionEN
(e) ‘residence permit’ means any authorisation issued by a
Member State, allowing a third-country national who fulfils
the conditions set by this Directive to stay legally on its
territory.
(f) ‘unaccompanied minors’ means third-country nationals
below the age of eighteen, who arrive on the territory of
the Member State unaccompanied by an adult responsible
for them whether by law or custom, and for as long as
they are not effectively taken into the care of such a
person, or minors who are left unaccompanied after they
have entered the territory of the Member State.
Article 3
Scope
1. Member States shall apply this Directive to the thirdcountry
nationals who are, or have been victims of offences
related to the trafficking in human beings, even if they have
illegally entered the territory of the Member States.
2. Member States may apply this Directive to the thirdcountry
nationals who have been the subject of an action to
facilitate illegal immigration.
3. This Directive shall apply to the third-country nationals
concerned having reached the age of majority set out by the
law of the Member State concerned.
By way of derogation, Member States may decide to apply this
Directive to minors under the conditions laid down in their
national law.
Article 4
More favourable provisions
This Directive shall not prevent Member States from adopting
or maintaining more favourable provisions for the persons
covered by this Directive.
CHAPTER II
PROCEDURE FOR ISSUING THE RESIDENCE PERMIT
Article 5
Information given to the third-country nationals
concerned
When the competent authorities of the Member States take the
view that a third-country national may fall into the scope of
this Directive, they shall inform the person concerned of the
possibilities offered under this Directive.
Member States may decide that such information may also be
provided by a non-governmental organisation or an association
specifically appointed by the Member State concerned.
Article 6
Reflection period
1. Member States shall ensure that the third-country
nationals concerned are granted a reflection period allowing
them to recover and escape the influence of the perpetrators of
the offences so that they can take an informed decision as to
whether to cooperate with the competent authorities.
The duration and starting point of the period referred to in the
first subparagraph shall be determined according to national
law.
2. During the reflection period and while awaiting the decision
of the competent authorities, the third-country nationals
concerned shall have access to the treatment referred to in
Article 7 and it shall not be possible to enforce any expulsion
order against them.
3. The reflection period shall not create any entitlement to
residence under this Directive.
4. The Member State may at any time terminate the reflection
period if the competent authorities have established that
the person concerned has actively, voluntarily and on his/her
own initiative renewed contact with the perpetrators of the
offences referred to in Article 2(b) and (c) or for reasons
relating to public policy and to the protection of national
security.
Article 7
Treatment granted before the issue of the residence
permit
1. Member States shall ensure that the third-country
nationals concerned who do not have sufficient resources are
granted standards of living capable of ensuring their subsistence
and access to emergency medical treatment. They shall attend
to the special needs of the most vulnerable, including, where
appropriate and if provided by national law, psychological
assistance.
2. Member States shall take due account of the safety and
protection needs of the third-country nationals concerned
when applying this Directive, in accordance with national law.
3. Member States shall provide the third-country nationals
concerned, where appropriate, with translation and interpreting
services.
4. Member States may provide the third-country nationals
concerned with free legal aid, if established and under the
conditions set by national law.
6.8.2004 L 261/21Official Journal of the European UnionEN
Article 8
Issue and renewal of the residence permit
1. After the expiry of the reflection period, or earlier if the
competent authorities are of the view that the third-country
national concerned has already fulfilled the criterion set out in
subparagraph (b), Member States shall consider:
(a) the opportunity presented by prolonging his/her stay on its
territory for the investigations or the judicial proceedings,
and
(b) whether he/she has shown a clear intention to cooperate
and
(c) whether he/she has severed all relations with those
suspected of acts that might be included among the
offences referred to in Article 2(b) and (c).
2. For the issue of the residence permit and without prejudice
to the reasons relating to public policy and to the protection
of national security, the fulfilment of the conditions
referred to in paragraph 1 shall be required.
3. Without prejudice to the provisions on withdrawal
referred to in Article 14, the residence permit shall be valid for
at least six months. It shall be renewed if the conditions set out
in paragraph 2 of this Article continue to be satisfied.
CHAPTER III
TREATMENT OF HOLDERS OF THE RESIDENCE PERMIT
Article 9
Treatment granted after the issue of the residence permit
1. Member States shall ensure that holders of a residence
permit who do not have sufficient resources are granted at least
the same treatment provided for in Article 7.
2. Member States shall provide necessary medical or other
assistance to the third-country nationals concerned, who do
not have sufficient resources and have special needs, such as
pregnant women, the disabled or victims of sexual violence or
other forms of violence and, if Member States have recourse to
the option provided for in Article 3(3), minors.
Article 10
Minors
If Member States have recourse to the option provided for in
Article 3(3), the following provisions shall apply:
(a) Member States shall take due account of the best interests
of the child when applying this Directive. They shall ensure
that the procedure is appropriate to the age and maturity
of the child. In particular, if they consider that it is in the
best interest of the child, they may extend the reflection
period.
(b) Member States shall ensure that minors have access to the
educational system under the same conditions as nationals.
Member States may stipulate that such access must be
limited to the public education system.
(c) In the case of third-country nationals who are unaccompanied
minors, Member States shall take the necessary steps
to establish their identity, nationality and the fact that they
are unaccompanied. They shall make every effort to locate
their families as quickly as possible and take the necessary
steps immediately to ensure legal representation, including
representation in criminal proceedings, if necessary, in
accordance with national law.
Article 11
Work, vocational training and education
1. Member States shall define the rules under which holders
of the residence permit shall be authorised to have access to
the labour market, to vocational training and education.
Such access shall be limited to the duration of the residence
permit.
2. The conditions and the procedures for authorising access
to the labour market, to vocational training and education shall
be determined, under the national legislation, by the competent
authorities.
Article 12
Programmes or schemes for the third-country nationals
concerned
1. The third-country nationals concerned shall be granted
access to existing programmes or schemes, provided by the
Member States or by non-governmental organisations or associations
which have specific agreements with the Member
States, aimed at their recovery of a normal social life, including,
where appropriate, courses designed to improve their professional
skills, or preparation of their assisted return to their
country of origin.
Member States may provide specific programmes or schemes
for the third-country nationals concerned.
2. Where a Member State decides to introduce and implement
the programmes or schemes referred to in paragraph 1, it
may make the issue of the residence permit or its renewal
conditional upon the participation in the said programmes or
schemes.
6.8.2004L 261/22 Official Journal of the European UnionEN
CHAPTER IV
NON-RENEWAL AND WITHDRAWAL
Article 13
Non-renewal
1. The residence permit issued on the basis of this Directive
shall not be renewed if the conditions of Article 8(2) cease to
be satisfied or if a decision adopted by the competent authorities
has terminated the relevant proceedings.
2. When the residence permit issued on the basis of this
Directive expires ordinary aliens' law shall apply.
Article 14
Withdrawal
The residence permit may be withdrawn at any time if the
conditions for the issue are no longer satisfied. In particular,
the residence permit may be withdrawn in the following cases:
(a) if the holder has actively, voluntarily and in his/her own
initiative renewed contacts with those suspected of committing
the offences referred to in Article 2(b) and (c); or
(b) if the competent authority believes that the victim's cooperation
is fraudulent or that his/her complaint is fraudulent
or wrongful; or
(c) for reasons relating to public policy and to the protection
of national security; or
(d) when the victim ceases to cooperate; or
(e) when the competent authorities decide to discontinue the
proceedings.
CHAPTER V
FINAL PROVISIONS
Article 15
Safeguard clause
This Directive shall apply without prejudice to specific national
rules concerning the protection of victims and witnesses.
Article 16
Report
1. No later than 6 August 2008, the Commission shall
report to the European Parliament and the Council on the
application of this Directive in the Member States and propose
any amendments that are necessary. The Member States shall
send the Commission any information relevant to the preparation
of this report.
2. After presenting the report referred to in paragraph 1, the
Commission shall report to the European Parliament and the
Council at least every three years on the application of this
Directive in the Member States.
Article 17
Transposal
The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 6 August 2006. They shall immediately inform
the Commission accordingly.
When the Member States adopt these measures, they shall
contain a reference to this Directive or shall be accompanied
by such a reference on the occasion of their official publication.
The methods of making such reference shall be laid down by
Member States.
Article 18
Entry into force
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.
Article 19
Addressees
This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.
Done at Luxembourg, 29 April 2004.
For the Council
The President
M. McDOWELL
6.8.2004 L 261/23Official Journal of the European UnionEN
DIRECTIVES
DIRECTIVE 2009/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 18 June 2009
providing for minimum standards on sanctions and measures against employers of illegally staying
third-country nationals
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 63(3)(b) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and
Social Committee (1),
Having regard to the opinion of the Committee of the
Regions (2),
Acting in accordance with the procedure laid down in
Article 251 of the Treaty (3),
Whereas:
(1) The European Council meeting of 14 and 15 December
2006 agreed that cooperation among Member States
should be strengthened in the fight against illegal immigration
and in particular that measures against illegal
employment should be intensified at Member State and
EU level.
(2) A key pull factor for illegal immigration into the EU is
the possibility of obtaining work in the EU without the
required legal status. Action against illegal immigration
and illegal stay should therefore include measures to
counter that pull factor.
(3) The centrepiece of such measures should be a general
prohibition on the employment of third-country
nationals who do not have the right to be resident in
the EU, accompanied by sanctions against employers
who infringe that prohibition.
(4) As this Directive provides for minimum standards,
Member States should remain free to adopt or
maintain stricter sanctions and measures and impose
stricter obligations on employers.
(5) This Directive should not apply to third-country
nationals staying legally in a Member State regardless
of whether they are allowed to work in its territory.
Furthermore, it should not apply to persons enjoying
the Community right of free movement, as defined in
Article 2(5) of Regulation (EC) No 562/2006 of the
European Parliament and of the Council of 15 March
2006 establishing a Community Code on the rules
governing the movement of persons across borders
(Schengen Borders Code) (4). Moreover it should not
apply to third-country nationals who are in a situation
covered by Community law, such as those who are
lawfully employed in a Member State and who are
posted by a service provider to another Member State
in the context of the provision of services. This
Directive should apply without prejudice to national
law prohibiting the employment of legally staying
third-country nationals who work in breach of their
residence status.
(6) For the specific purposes of this Directive, certain terms
should be defined and such definitions should be used
only for the purposes of this Directive.
(7) The definition of employment should encompass its
constituent elements, namely activities that are or
ought to be remunerated, undertaken for or under the
direction and/or supervision of an employer, irrespective
of the legal relationship.
(8) The definition of employer may include an association of
persons recognised as having the capacity to perform
legal acts without having legal personality.
ENL 168/24 Official Journal of the European Union 30.6.2009
(1) OJ C 204, 9.8.2008, p. 70.
(2) OJ C 257, 9.10.2008, p. 20.
(3) Opinion of the European Parliament of 4 February 2009 (not yet
published in the Official Journal) and Council Decision of 25 May
2009. (4) OJ L 105, 13.4.2006, p. 1.
(9) To prevent the employment of illegally staying thirdcountry
nationals, employers should be required, before
recruiting a third-country national, including in cases
where the third-country national is being recruited for
the purpose of posting to another Member State in the
context of the provision of services, to check that the
third-country national has a valid residence permit or
another authorisation for stay showing that he or she
is legally staying on the territory of the Member State
of recruitment.
(10) To enable Member States in particular to check for
forged documents, employers should also be required
to notify the competent authorities of the employment
of a third-country national. In order to minimise the
administrative burden, Member States should be free to
provide for such notifications to be undertaken within
the framework of other notification schemes. Member
States should be free to decide a simplified procedure
for notification by employers who are natural persons
where the employment is for their private purposes.
(11) Employers that have fulfilled the obligations set out in
this Directive should not be held liable for having
employed illegally staying third-country nationals, in
particular if the competent authority later finds that the
document presented by an employee had in fact been
forged or misused, unless the employer knew that the
document was a forgery.
(12) To facilitate the fulfilment by employers of their obligations,
Member States should use their best endeavours
to handle requests for renewal of residence permits in a
timely manner.
(13) To enforce the general prohibition and to deter infringements,
Member States should provide for appropriate
sanctions. These should include financial sanctions and
contributions to the costs of returning illegally staying
third-country nationals, together with the possibility of
reduced financial sanctions on employers who are natural
persons where the employment is for their private
purposes.
(14) The employer should in any event be required to pay to
the third-country nationals any outstanding remuneration
for the work which they have undertaken and any
outstanding taxes and social security contributions. If
the level of remuneration cannot be determined, it
should be presumed to be at least as high as the wage
provided for by the applicable laws on minimum wages,
by collective agreements or in accordance with established
practice in the relevant occupational branches.
The employer should also be required to pay, where
appropriate, any costs arising from the sending of
outstanding remuneration to the country to which the
illegally employed third-country national has, or has
been, returned. In those cases where back payments are
not made by the employer, Member States should not be
obliged to fulfil that obligation in place of the employer.
(15) An illegally employed third-country national should not
derive a right to entry, stay and access to the labour
market from the illegal employment relationship or
from the payment or back payment of remuneration,
social security contributions or taxes by the employer
or by a legal entity which has to pay instead of the
employer.
(16) Member States should ensure that claims are or may be
lodged and that mechanisms are in place to ensure that
recovered amounts of outstanding remuneration are able
to be received by the third-country nationals to whom
they are due. Member States should not be obliged to
involve their missions or representations in third
countries in those mechanisms. Member States should,
in the context of establishing effective mechanisms to
facilitate complaints and if not already provided for by
national legislation, consider the possibility and added
value of enabling a competent authority to bring
proceedings against an employer for the purpose of
recovering outstanding remuneration.
(17) Member States should further provide for a presumption
of an employment relationship of at least three months’
duration so that the burden of proof is on the employer
in respect of at least a certain period. Among others, the
employee should also have the opportunity of proving
the existence and duration of an employment rela­
tionship.
(18) Member States should provide for the possibility of
further sanctions against employers, inter alia, exclusions
from entitlement to some or all public benefits, aids or
subsidies, including agricultural subsidies, exclusions
from public procurement procedures and recovery of
some or all public benefits, aids or subsidies, including
EU funding managed by Member States, that have
already been granted. Member States should be free to
decide not to apply those further sanctions against
employers who are natural persons where the
employment is for their private purposes.
(19) This Directive, and in particular its Articles 7, 10 and 12,
should be without prejudice to Council Regulation (EC,
Euratom) No 1605/2002 of 25 June 2002 on the
Financial Regulation applicable to the general budget of
the European Communities (1).
(20) In view of the prevalence of subcontracting in certain
affected sectors, it is necessary to ensure that at least
the contractor of which the employer is a direct subcontractor
may be liable to pay financial sanctions in
addition to or in place of the employer. In specific
cases, other contractors may be liable to pay financial
sanctions in addition to or in place of an employer of
EN30.6.2009 Official Journal of the European Union L 168/25
(1) OJ L 248, 16.9.2002, p. 1.
illegally staying third-country nationals. Back payments
which are to be covered by the liability provisions of
this Directive should also include contributions to
national holiday pay funds and social funds regulated
by law or collective agreements.
(21) Experience has shown that the existing systems of
sanctions have not been sufficient to achieve complete
compliance with prohibitions against the employment of
illegally staying third-country nationals. One of the
reasons is that administrative sanctions alone are likely
not to be enough to deter certain unscrupulous
employers. Compliance can and should be strengthened
by the application of criminal penalties.
(22) To guarantee the full effectiveness of the general prohibition,
there is therefore a particular need for more
dissuasive sanctions in serious cases, such as persistently
repeated infringements, the illegal employment of a
significant number of third-country nationals, particularly
exploitative working conditions, the employer knowing
that the worker is a victim of trafficking in human beings
and the illegal employment of a minor. This Directive
obliges Member States to provide for criminal penalties
in their national legislation in respect of those serious
infringements. It creates no obligations regarding the
application of such penalties, or any other available
system of law enforcement, in individual cases.
(23) In all cases deemed to be serious according to this
Directive the infringement should be considered a
criminal offence throughout the Community when
committed intentionally. The provisions of this
Directive regarding criminal offences should be without
prejudice to the application of Council Framework
Decision 2002/629/JHA of 19 July 2002 on combating
trafficking in human beings (1).
(24) The criminal offence should be punishable by effective,
proportionate and dissuasive criminal penalties. The obligation
to ensure effective, proportionate and dissuasive
criminal penalties under this Directive is without
prejudice to the internal organisation of criminal law
and criminal justice in the Member States.
(25) Legal persons may also be held liable for the criminal
offences referred to in this Directive, because many
employers are legal persons. The provisions of this
Directive do not entail an obligation for Member States
to introduce criminal liability of legal persons.
(26) To facilitate the enforcement of this Directive, there
should be effective complaint mechanisms by which
relevant third-country nationals may lodge complaints
directly or through designated third parties such as
trade unions or other associations. The designated third
parties should be protected, when providing assistance to
lodge complaints, against possible sanctions under rules
prohibiting the facilitation of unauthorised residence.
(27) To supplement the complaint mechanisms, Member
States should be free to grant residence permits of
limited duration, linked to the length of the relevant
national proceedings, to third-country nationals who
have been subjected to particularly exploitative working
conditions or who were illegally employed minors and
who cooperate in criminal proceedings against the
employer. Such permits should be granted under
arrangements comparable to those applicable to thirdcountry
nationals who fall within the scope of Council
Directive 2004/81/EC of 29 April 2004 on the residence
permit issued to third-country nationals who are victims
of trafficking in human beings or who have been the
subject of an action to facilitate illegal immigration,
who cooperate with the competent authorities (2).
(28) To ensure a satisfactory level of enforcement of this
Directive and to reduce, as far as possible, differences
in the level of enforcement in the Member States,
Member States should ensure that effective and
adequate inspections are carried out on their territory
and should communicate data on the inspections they
carry out to the Commission.
(29) Member States should be encouraged to determine every
year a national target for the number of inspections in
respect of the sectors of activity in which the
employment of illegally staying third-country nationals
is concentrated on their territory.
(30) With a view to increasing the effectiveness of inspections
for the purposes of applying this Directive, Member
States should ensure that national legislation gives
adequate powers to competent authorities to carry out
inspections; that information about illegal employment,
including the results of previous inspections, is collected
and processed for the effective implementation of this
Directive; and that sufficient staff are available with the
skills and qualifications needed to carry out inspections
effectively.
(31) Member States should ensure that inspections for the
purposes of applying this Directive do not affect, from
a quantitative or qualitative point of view, inspections
carried out to assess employment and working
conditions.
ENL 168/26 Official Journal of the European Union 30.6.2009
(1) OJ L 203, 1.8.2002, p. 1. (2) OJ L 261, 6.8.2004, p. 19.
(32) In the case of posted workers who are third-country
nationals, Member States’ inspection authorities may
avail themselves of the cooperation and exchange of
information provided for in Directive 96/71/EC of the
European Parliament and of the Council of
16 December 1996 concerning the posting of workers
in the framework of the provision of services (1), in order
to verify that the third-country nationals concerned are
lawfully employed in the Member State of origin.
(33) This Directive should be seen as complementary to
measures to counter undeclared work and exploitation.
(34) In accordance with point 34 of the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the
interests of the Community, their own tables, which
will, as far as possible, illustrate the correlation between
this Directive and the transposition measures and to
make them public.
(35) Any processing of personal data undertaken in the implementation
of this Directive should be in compliance 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).
(36) Since the objective of this Directive, namely to counteract
illegal immigration by acting against the employment
pull factor, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the
scale and effects of this Directive, 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 Directive does not go beyond what is necessary to
achieve that objective.
(37) This Directive respects the fundamental rights and
observes the principles recognised in particular by the
European Convention for the Protection of Human
Rights and Fundamental Freedoms and the Charter of
Fundamental Rights of the European Union. Specifically,
it should be applied with due respect for the freedom to
conduct a business, equality before the law and the
principle of non-discrimination, the right to an effective
remedy and to a fair trial and the principles of legality
and proportionality of criminal offences and penalties, in
accordance with Articles 16, 20, 21, 47 and 49 of the
Charter.
(38) In accordance with Articles 1 and 2 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, and without
prejudice to Article 4 of that Protocol, those Member
States are not taking part in the adoption of this
Directive and are therefore not bound by it or subject
to its application.
(39) 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 is not taking part in
the adoption of this Directive and is therefore not
bound by it or subject to its application,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Subject matter and scope
This Directive prohibits the employment of illegally staying
third-country nationals in order to fight illegal immigration.
To this end, it lays down minimum common standards on
sanctions and measures to be applied in the Member States
against employers who infringe that prohibition.
Article 2
Definitions
For the specific purposes of this Directive, the following definitions
shall apply:
(a) ‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1)
of the Treaty and who is not a person enjoying the
Community right of free movement, as defined in
Article 2(5) of the Schengen Borders Code;
(b) ‘illegally staying third-country national’ means a thirdcountry
national present on the territory of a Member
State, who does not fulfil, or no longer fulfils, the
conditions for stay or residence in that Member State;
(c) ‘employment’ means the exercise of activities covering
whatever form of labour or work regulated under national
law or in accordance with established practice for or under
the direction and/or supervision of an employer;
(d) ‘illegal employment’ means the employment of an illegally
staying third-country national;
EN30.6.2009 Official Journal of the European Union L 168/27
(1) OJ L 18, 21.1.1997, p. 1.
(2) OJ C 321, 31.12.2003, p. 1.
(3) OJ L 281, 23.11.1995, p. 31.
(e) ‘employer’ means any natural person or any legal entity,
including temporary work agencies, for or under the
direction and/or supervision of whom the employment is
undertaken;
(f) ‘subcontractor’ means any natural person or any legal entity,
to whom the execution of all or part of the obligations of a
prior contract is assigned;
(g) ‘legal person’ means any legal entity having such status
under applicable national law, except for States or public
bodies exercising State authority and for public international
organisations;
(h) ‘temporary work agency’ means any natural or legal person
who, in compliance with national law, concludes contracts
of employment or employment relationships with
temporary agency workers in order to assign them to user
undertakings to work there temporarily under their supervision
and direction;
(i) ‘particularly exploitative working conditions’ means working
conditions, including those resulting from gender based or
other discrimination, where there is a striking disproportion
compared with the terms of employment of legally
employed workers which, for example, affects workers’
health and safety, and which offends against human dignity;
(j) ‘remuneration of illegally staying third-country national’
means the wage or salary and any other consideration,
whether in cash or in kind, which a worker receives
directly or indirectly in respect of his employment from
his employer and which is equivalent to that which would
have been enjoyed by comparable workers in a legal
employment relationship.
Article 3
Prohibition of illegal employment
1. Member States shall prohibit the employment of illegally
staying third-country nationals.
2. Infringements of this prohibition shall be subject to the
sanctions and measures laid down in this Directive.
3. A Member State may decide not to apply the prohibition
referred to in paragraph 1 to illegally staying third-country
nationals whose removal has been postponed and who are
allowed to work in accordance with national law.
Article 4
Obligations on employers
1. Member States shall oblige employers to:
(a) require that a third-country national before taking up the
employment holds and presents to the employer a valid
residence permit or other authorisation for his or her stay;
(b) keep for at least the duration of the employment a copy or
record of the residence permit or other authorisation for
stay available for possible inspection by the competent authorities
of the Member States;
(c) notify the competent authorities designated by Member
States of the start of employment of third-country
nationals within a period laid down by each Member State.
2. Member States may provide for a simplified procedure for
notification under paragraph 1(c) where the employers are
natural persons and the employment is for their private
purposes.
Member States may provide that notification under paragraph
1(c) is not required where the employee has been granted longterm
residence status under Council Directive 2003/109/EC of
25 November 2003 concerning the status of third-country
nationals who are long-term residents (1).
3. Member States shall ensure that employers who have
fulfilled their obligations set out in paragraph 1 shall not be
held liable for an infringement of the prohibition referred to in
Article 3 unless the employers knew that the document
presented as a valid residence permit or another authorisation
for stay was a forgery.
Article 5
Financial sanctions
1. Member States shall take the necessary measures to ensure
that infringements of the prohibition referred to in Article 3 are
subject to effective, proportionate and dissuasive sanctions
against the employer.
2. Sanctions in respect of infringements of the prohibition
referred to in Article 3 shall include:
(a) financial sanctions which shall increase in amount according
to the number of illegally employed third-country nationals;
and
(b) payments of the costs of return of illegally employed thirdcountry
nationals in those cases where return procedures
are carried out. Member States may instead decide to
reflect at least the average costs of return in the financial
sanctions under point (a).
ENL 168/28 Official Journal of the European Union 30.6.2009
(1) OJ L 16, 23.1.2004, p. 44.
3. Member States may provide for reduced financial
sanctions where the employer is a natural person who
employs an illegally staying third-country national for his or
her private purposes and where no particularly exploitative
working conditions are involved.
Article 6
Back payments to be made by employers
1. In respect of each infringement of the prohibition referred
to in Article 3, Member States shall ensure that the employer
shall be liable to pay:
(a) any outstanding remuneration to the illegally employed
third-country national. The agreed level of remuneration
shall be presumed to have been at least as high as the
wage provided for by the applicable laws on minimum
wages, by collective agreements or in accordance with established
practice in the relevant occupational branches, unless
either the employer or the employee can prove otherwise,
while respecting, where appropriate, the mandatory national
provisions on wages;
(b) an amount equal to any taxes and social security
contributions that the employer would have paid had the
third-country national been legally employed, including
penalty payments for delays and relevant administrative
fines;
(c) where appropriate, any cost arising from sending back
payments to the country to which the third-country
national has returned or has been returned.
2. In order to ensure the availability of effective procedures
to apply paragraph 1(a) and (c), and having due regard to
Article 13, Member States shall enact mechanisms to ensure
that illegally employed third-country nationals:
(a) may introduce a claim, subject to a limitation period defined
in national law, against their employer and eventually
enforce a judgment against the employer for any
outstanding remuneration, including in cases in which
they have, or have been, returned; or
(b) when provided for by national legislation, may call on the
competent authority of the Member State to start
procedures to recover outstanding remuneration without
the need for them to introduce a claim in that case.
Illegally employed third-country nationals shall be systematically
and objectively informed about their rights under this paragraph
and under Article 13 before the enforcement of any return
decision.
3. In order to apply paragraph 1(a) and (b), Member States
shall provide that an employment relationship of at least three
months duration be presumed unless, among others, the
employer or the employee can prove otherwise.
4. Member States shall ensure that the necessary mechanisms
are in place to ensure that illegally employed third-country
nationals are able to receive any back payment of remuneration
referred to in paragraph 1(a) which is recovered as part of the
claims referred to in paragraph 2, including in cases in which
they have, or have been, returned.
5. In respect of cases where residence permits of limited
duration have been granted under Article 13(4), Member
States shall define under national law the conditions under
which the duration of these permits may be extended until
the third-country national has received any back payment of
his or her remuneration recovered under paragraph 1 of this
Article.
Article 7
Other measures
1. Member States shall take the necessary measures to ensure
that employers shall also, if appropriate, be subject to the
following measures:
(a) exclusion from entitlement to some or all public benefits,
aid or subsidies, including EU funding managed by Member
States, for up to five years;
(b) exclusion from participation in a public contract as defined
in Directive 2004/18/EC of the European Parliament and of
the Council of 31 March 2004 on the coordination of
procedures for the award of public works contracts,
public supply contracts and public service contracts (1) for
up to five years;
(c) recovery of some or all public benefits, aid, or subsidies,
including EU funding managed by Member States, granted
to the employer for up to 12 months preceding the
detection of illegal employment;
(d) temporary or permanent closure of the establishments that
have been used to commit the infringement, or temporary
or permanent withdrawal of a licence to conduct the
business activity in question, if justified by the gravity of
the infringement.
2. Member States may decide not to apply paragraph 1
where the employers are natural persons and the employment
is for their private purposes.
EN30.6.2009 Official Journal of the European Union L 168/29
(1) OJ L 134, 30.4.2004, p. 114.
Article 8
Subcontracting
1. Where the employer is a subcontractor and without
prejudice to the provisions of national law concerning the
rights of contribution or recourse or to the provisions of
national law in the field of social security, Member States
shall ensure that the contractor of which the employer is a
direct subcontractor may, in addition to or in place of the
employer, be liable to pay:
(a) any financial sanction imposed under Article 5; and
(b) any back payments due under Article 6(1)(a) and (c) and
Article 6(2) and(3).
2. Where the employer is a subcontractor, Member States
shall ensure that the main contractor and any intermediate
subcontractor, where they knew that the employing subcontractor
employed illegally staying third-country nationals, may
be liable to make the payments referred to in paragraph 1 in
addition to or in place of the employing subcontractor or the
contractor of which the employer is a direct subcontractor.
3. A contractor that has undertaken due diligence obligations
as defined by national law shall not be liable under paragraphs
1 and 2.
4. Member States may provide for more stringent liability
rules under national law.
Article 9
Criminal offence
1. Member States shall ensure that the infringement of the
prohibition referred to in Article 3 constitutes a criminal
offence when committed intentionally, in each of the
following circumstances as defined by national law:
(a) the infringement continues or is persistently repeated;
(b) the infringement is in respect of the simultaneous
employment of a significant number of illegally staying
third-country nationals;
(c) the infringement is accompanied by particularly exploitative
working conditions;
(d) the infringement is committed by an employer who, while
not having been charged with or convicted of an offence
established pursuant to Framework Decision 2002/629/JHA,
uses work or services exacted from an illegally staying thirdcountry
national with the knowledge that he or she is a
victim of trafficking in human beings;
(e) the infringement relates to the illegal employment of a
minor.
2. Member States shall ensure that inciting, aiding and
abetting the intentional conduct referred to in paragraph 1 is
punishable as a criminal offence.
Article 10
Criminal penalties
1. Member States shall take the necessary measures to ensure
that natural persons who commit the criminal offence referred
to in Article 9 are punishable by effective, proportionate and
dissuasive criminal penalties.
2. Unless prohibited by general principles of law, the
criminal penalties provided for in this Article may be applied
under national law without prejudice to other sanctions or
measures of a non-criminal nature, and they may be accompanied
by the publication of the judicial decision relevant to the
case.
Article 11
Liability of legal persons
1. Member States shall ensure that legal persons may be held
liable for the offence referred to in Article 9 where such an
offence has been committed for their benefit by any person
who has a leading position within the legal person, acting
either individually or as part of an organ of the legal person,
on the basis of:
(a) a power of representation of the legal person;
(b) an authority to take decisions on behalf of the legal person;
or
(c) an authority to exercise control within the legal person.
2. Member States shall also ensure that a legal person may
be held liable where the lack of supervision or control, by a
person referred to in paragraph 1, has made possible the
commission of the criminal offence referred to in Article 9
for the benefit of that legal person by a person under its auth­
ority.
ENL 168/30 Official Journal of the European Union 30.6.2009
3. Liability of a legal person under paragraphs 1 and 2 shall
not exclude criminal proceedings against natural persons who
are perpetrators, inciters or accessories in the offence referred to
in Article 9.
Article 12
Penalties for legal persons
Member States shall take the necessary measures to ensure that
a legal person held liable pursuant to Article 11 is punishable
by effective, proportionate and dissuasive penalties, which may
include measures such as those referred to in Article 7.
Member States may decide that a list of employers who are legal
persons and who have been held liable for the criminal offence
referred to in Article 9 is made public.
Article 13
Facilitation of complaints
1. Member States shall ensure that there are effective mechanisms
through which third-country nationals in illegal
employment may lodge complaints against their employers,
directly or through third parties designated by Member States
such as trade unions or other associations or a competent
authority of the Member State when provided for by national
legislation.
2. Member States shall ensure that third parties which have,
in accordance with the criteria laid down in their national law, a
legitimate interest in ensuring compliance with this Directive,
may engage either on behalf of or in support of an illegally
employed third-country national, with his or her approval, in
any administrative or civil proceedings provided for with the
objective of implementing this Directive.
3. Providing assistance to third-country nationals to lodge
complaints shall not be considered as facilitation of unauthorised
residence under Council Directive 2002/90/EC of
28 November 2002 defining the facilitation of unauthorised
entry, transit and residence (1).
4. In respect of criminal offences covered by Article 9(1)(c)
or (e), Member States shall define in national law the conditions
under which they may grant, on a case-by-case basis, permits of
limited duration, linked to the length of the relevant national
proceedings, to the third-country nationals involved, under
arrangements comparable to those applicable to third-country
nationals who fall within the scope of Directive 2004/81/EC.
Article 14
Inspections
1. Member States shall ensure that effective and adequate
inspections are carried out on their territory to control
employment of illegally staying third-country nationals. Such
inspections shall be based primarily on a risk assessment to
be drawn up by the competent authorities in the Member
States.
2. With a view to increasing the effectiveness of inspections,
Member States shall, on the basis of a risk assessment, regularly
identify the sectors of activity in which the employment of
illegally staying third-country nationals is concentrated on
their territory.
In respect of each of those sectors, Member States shall, before
1 July of each year, communicate to the Commission the
inspections, both in absolute numbers and as a percentage of
the employers for each sector, carried out in the previous year
as well as their results.
Article 15
More favourable provisions
This Directive shall be without prejudice to the right of Member
States to adopt or maintain provisions that are more favourable
to third-country nationals to whom it applies in relation with
Articles 6 and 13, provided that such provisions are compatible
with this Directive.
Article 16
Reporting
1. By 20 July 2014, and every three years thereafter, the
Commission shall submit a report to the European Parliament
and the Council including, where appropriate, proposals for
amending Articles 6, 7, 8, 13 and 14. The Commission shall
in particular examine in its report the implementation by
Member States of Article 6(2) and (5).
2. Member States shall send the Commission all the
information that is appropriate for drawing up the report
referred to in paragraph 1. The information shall include the
number and results of inspections carried out pursuant to
Article 14(1), measures applied under Article 13 and, as far
as possible, measures applied under Articles 6 and 7.
Article 17
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 20 July 2011. They shall forthwith inform the
Commission thereof.
EN30.6.2009 Official Journal of the European Union L 168/31
(1) OJ L 328, 5.12.2002, p. 17.
When they are adopted by Member States, those measures 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 national law
which they adopt in the field covered by this Directive.
Article 18
Entry into force
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the
European Union.
Article 19
Addressees
This Directive is addressed to the Member States in accordance with the Treaty establishing the European
Community.
Done at Brussels, 18 June 2009.
For the European Parliament
The President
H.-G. PÖTTERING
For the Council
The President
Š. FÜLE
ENL 168/32 Official Journal of the European Union 30.6.2009