52004PC0092(01)

Proposal for a COUNCIL DECISION concerning the signing of the Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. Political and legal framework

The Justice and Home Affairs (JHA) Council authorised the Commission to negotiate a readmission agreement between the European Community and Albania, by its decision of 28 November 2002. At the end of March 2003, the Commission transmitted a draft Readmission Agreement text to the Albanian authorities. The first negotiating round took place in Tirana on 15/16 May 2003. A second round took place in Brussels on 18 September, and a final one was held in Tirana on 5 November 2003. The Agreement was initialled in Brussels on 18 December 2003.

Member States have regularly been informed and consulted at all (informal and formal) stages of the negotiations.

On the part of the Community, the legal basis for the Agreement is Article 63 para. 3 lit. b), in conjunction with Article 300 TEC.

The attached proposals constitute the legal instrument for the signature and conclusion of the Agreement. The Council will decide by unanimity (Art. 300 para. 2 subpara. 1 in conj. with Art. 67 EC Treaty). The European Parliament will have to be formally consulted on the conclusion of the Agreement, in accordance with Art. 300 para. 3 EC Treaty.

The proposed decision concerning the conclusion sets out the necessary internal arrangements for the practical application of the Agreement. In particular, it specifies that the Commission, assisted by experts from Member States, represents the Community within the Joint Committee set up by Article 18 of the Agreement. Further, the Agreement establishes a Readmission Committee which has powers to take decisions having legal effect on certain technical matters. Given the technical character of these decisions, it appears appropriate to provide for a simplified procedure for the establishment of the Community position in such cases. These procedures are identical with the ones that have been adopted by the Council in the decision concerning the conclusion of the readmission agreement with Hong Kong.

In this respect the decision provides that, as regards the adoption of the rules of procedure of the Joint Committee, this will be done by the Commission in consultation with a special committee designated by the Council. As regards other decisions to be taken by the Joint Committee, it is proposed that the Community position will be adopted by the Council, acting by qualified majority, on a proposal by the Commission.

II. Outcome of the negotiations

The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft Readmission Agreement is acceptable to the Community.

The final content of it can be summarised as follows:

- The Agreement is divided into 8 sections with 23 articles altogether. It also contains 6 annexes, which form an integral part of it, and five joint declarations.

- The readmission obligations set out in the Agreement (Articles 2 to 5) are drawn up in a fully reciprocal way, comprising own nationals (Articles 2 and 4) as well as third country nationals and stateless persons (Articles 3 and 5). They all contain a formulation clarifying that readmission shall take place without any formalities other than those specified in this Agreement.

- The obligation to readmit third country nationals and stateless persons (Articles 3 and 5) is linked to the following prerequisites: (a) the person to be readmitted holds or at the time of entry held a valid residence authorisation or a valid visa of the requested Party, or (b) the person to be readmitted entered the territory of the requesting Party after having stayed on, or transited through (lawfully or unlawfully) the territory of the requested Party. Exempted from these obligations are persons in airside transit and all persons to whom the requesting Party has either issued a visa or residence authorisation with a longer period of validity or where the visa or residence authorisation was obtained by using forged or falsified documents.

- In return for the Republic of Albania agreeing to such broad obligations regarding the readmission of third-country nationals and stateless persons (Articles 3 and 5), the European Community accepted the Albanian requests (1) to delay for two years the entry into force of these obligations (Article 22 para.2 and 3) and (2) to insert a "re-readmission clause" for cases of readmission in error (Article 12).

- Under certain circumstances, the Republic of Albania accepts the use of the EU's standard travel document for expulsion purposes (Article 2 para. 2 and Article 3 para. 3);

- The Agreement contains a section on transit operations (Articles 13 and 14);

- Section III of the Agreement (Articles 6 to 12 in conj. with annexes 1 to 6) contains the necessary technical provisions regarding the readmission procedure (readmission application, means of evidence, time limits, transfer modalities and modes of transportation). Some procedural flexibility is provided by the fact that in cases where the person to be readmitted is in possession of valid travel documents , only a written communication - but no formal submission of a readmission application - will be needed (Article 6);

- Articles 15 to 17 contain the necessary rules on costs, data protection and the non-affection of other International rights and obligations applicable to the Parties;

- The Committee of experts will be composed, and have the tasks and powers, as set out in Article 18;

- In order to execute this Agreement in practice, Article 19 empowers Member States to conclude bilateral implementing Protocols with the Republic of Albania. The relation between such implementing Protocols and this Agreement is clarified by Article 20;

- The final provisions (Art. 21 to 23) contain the necessary rules on entry into force, duration, termination and the legal status of the annexes to the agreement. As provided by Article 22, the Agreement shall enter into force on the first day of the second month following the notification by the parties that the respective legal procedures have been completed. However, Articles 3 and 5 relating to the readmission of third country nationals and stateless persons will only enter into effect two years after the entry into force of the Agreement.

- The specific situation of Denmark is reflected in the preamble, Article 1 lit. a), Article 21 and in a joint declaration attached to the Agreement. The close association of Norway and Iceland to the implementation, application and development of the Schengen Acquis is likewise reflected in a joint declaration to the Agreement.

III. Conclusions

In the light of the above-mentioned results, the Commission proposes that the Council

- decide that the Agreement be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;

- approve, after consultation of the European Parliament, the attached Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation.

Proposal for a COUNCIL DECISION concerning the signing of the Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63, paragraph 3 lit. b), in conjunction with the second sentence of the first subparagraph of Article 300 (2) thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C...

WHEREAS:

(1) By its decision of 28 November 2002, the Council authorised the Commission to negotiate an agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation.

(2) Negotiations for the Agreement took place on 15 and 16 May, 18 September and 5 November 2003.

(3) Subject to its possible conclusion at a later date, the Agreement initialled in Brussels on 18 December should be signed.

HAS DECIDED AS FOLLOWS:

Sole Article

Subject to a possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community, the Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation.

Done in Brussels, the...........of............2004.

For the Council

The President