Explanatory Memorandum to COM(2007)504-1 - Signing of the Agreement with Moldova on the readmission of persons residing without authorisation - Main contents
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| dossier | COM(2007)504-1 - Signing of the Agreement with Moldova on the readmission of persons residing without authorisation. |
|---|---|
| source | COM(2007)504  |
| date | 05-09-2007 |
The legal basis for the EU-Moldova relationship is the Partnership and Cooperation Agreement, which was signed on 28 November 1994 and entered into force on 1 July 1998. The PCA sets out the structure for a regular political dialogue between the parties, and provides for EU-Moldova cooperation in the fight against illegal immigration, money laundering and drugs.
Following the adoption of the EU-Moldova European Neighbourhood Policy (ENP) Action Plan in February 2005, Moldova is an ENP partner country. The objective of the ENP is to avoid the emergence of new dividing lines between the EU and its neighbours and to strengthen stability, security and well-being for all concerned. With the EU membership of Romania, Moldova shares borders with the Union. The ENP Action Plan provides the basis for substantially intensified cooperation between the EU and Moldova on justice and home affairs.
The JHA Council of 24 July 2006 invited the Commission to undertake consultations with Member States within the relevant Council preparatory bodies on the possibility of initiating negotiations on visa facilitation and readmission agreements with the Republic of Moldova.
On 19 December 2006 the General Affairs and External Relations Council formally authorised the Commission to negotiate readmission and visa facilitation agreements with the Republic of Moldova. In January 2007 the Commission transmitted a draft agreement between the European Community and the Republic of Moldova to the authorities of the latter. The negotiations were launched on 9 February 2007 and the first formal round took place in Brussels on the same day. The negotiating rounds were held in Brussels in parallel ("back-to-back") with the negotiations on an EC- Moldova visa facilitation agreement. The last formal round of negotiations took place on 17 April 2007 during which all outstanding issues were agreed. The final text of the agreement was initialled in Chisinau on 25 April 2007.
Member States have been informed at the appropriate Council Working Group about the outcome of the readmission negotiations.
On the part of the Community, the legal basis for the Agreement is Article 63(3)(b), in conjunction with Article 300 TEC.
The attached proposals constitute the legal instrument for the signature and conclusion of the readmission agreement. The Council will decide by qualified majority. The European Parliament will have to be formally consulted on the conclusion of the Agreement, in accordance with Art. 300(3) EC Treaty.
The proposed decision concerning the conclusion sets out the necessary internal arrangements for the practical application of the Agreement. In particular, it specifies that the Commission represents the Community within the Joint Readmission Committee set up by Article 18 of the Agreement. Under Article 18 i, the readmission committee shall adopt its own rules of procedure. As in the case for the other readmission agreements so far concluded by the Community, the Community position in this regard shall be established by the Commission in consultation with a special committee designated by the Council. As regards other decisions to be taken by the Joint Committee, the Community position shall be established in accordance with the applicable provisions of the Treaty.
Contents
The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft Readmission Agreement is acceptable to the Community.
The 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 6 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).
- The obligation to readmit own nationals includes also former own nationals who have been deprived or have renounced their nationality without acquiring the nationality of another State.
- The readmission obligation with regard to own nationals covers also family members (i.e. spouses and minor unmarried children) who hold another nationality than the person to be readmitted and who do not have an independent right of residence in the Requesting State.
- The obligation to readmit third country nationals and stateless persons (Article 3) is linked to the following prerequisites: (a) the person concerned holds or at the time of entry held, a valid visa or residence permit issued by the Requested State, or (b) the person concerned illegally and directly entered the territory of the Requesting State after having stayed on or transited through the territory of the Requested State. Exempted from these obligations are persons in airside transit and all persons to whom the Requesting State has issued a visa or residence authorisation before or after entry to its territory.
- Both for own nationals, in case of expiry of specified delay, as well as for third country nationals or stateless persons, in all cases, the Republic of Moldova accepts the use of the EU's standard travel document for expulsion purposes (Articles 2 i and 3(3)).
- Section III of the Agreement (Articles 6 to 12 in conjunction with Annexes 1 to 5) contains the necessary technical provisions regarding the readmission procedure (the form and content of the readmission application, means of evidence, time limits, transfer modalities and modes of transportation). Some procedural flexibility is provided by the fact that no readmission will be needed in cases where the person to be readmitted is in possession of a valid national passport and, if he or she is a third-country national, also holds a valid visa or residence authorisation of the State which has to readmit him or her (Article 6(2)). In its paragraph 3, Article 6 contains another important procedural element, the so-called accelerated procedure, which has been agreed upon for persons apprehended in the “border region”, i.e. within an area which extends up to 30 kilometres from the common land border between a Member State and the Republic of Moldova or within the territories of International airports of Member States or the Republic of Moldova. Under the accelerated procedure, readmission applications have to be submitted, and replies have to be given, within 2 working days whereas under the normal procedure, the time limit for replies is 11 working days.
- The agreement contains also a section on transit operations (Articles 13 and 14 in conjunction with Annex 6).
- Articles 15 to 17 contain the necessary rules on costs, data protection and the relation to other International obligations.
- The Joint Readmission Committee will be composed, and have the tasks and powers, as set out in Article 18.
- In order to execute this Agreement in practice, Article 19 creates the possibility for the Republic of Moldova and individual Member States to conclude bilateral implementing Protocols. The relation between the bilateral implementing Protocols as well as other existing bilateral readmission agreements between the Republic of Moldova and individual Member States with this Agreement is clarified by Article 20.
- The final provisions (Art. 21 to 23) contain the necessary rules on entry into force, duration, possible amendments, suspension, termination and the legal status of the Annexes to the agreement.
- The specific situation of Denmark is reflected in the preamble, Articles 1(d), 21 i and in a joint declaration attached to the Agreement. The close association of Norway, Iceland and Switzerland to the implementation, application and development of the Schengen Acquis is likewise reflected in joint declarations to the Agreement.
In the light of the above-mentioned results, the Commission proposes that the Council
- decide that the Agreement be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;
- approve, after consultation of the European Parliament, the attached Agreement between the European Community and the Republic of Moldova on the readmission of persons residing without authorisation.
COUNCIL DECISION
concerning the signing of the Agreement between the European Community and the Republic of Moldova 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 first sentence of the first subparagraph of Article 300 i thereof,
Having regard to the proposal from the Commission i,
WHEREAS:
By its decision of 19 December 2006, the Council authorised the Commission to negotiate an agreement between the European Community and the Republic of Moldova on the readmission of persons residing without authorisation.
Negotiations for the Agreement took place between 9 February 2007 and 17 April 2007.
Subject to its possible conclusion at a later date, the Agreement initialled in Chisinau on 25 April 2007 should be signed.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Decision and is not bound by it or subject to its application,
HAS DECIDED AS FOLLOWS:
Subject to a possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community, the Agreement between the European Community and the Republic of Moldova on the readmission of persons residing without authorisation.
Done in Brussels, the………..of…………2007.
The President